Canadian residents barred from Jeopardy! – CASL to blame?
America's favourite quiz show has put its popularity in Jeopardy! north of the border after running into problems with Canada's Anti-Spam Law, says Fredericton litigator Matthew Pearn.
The long-running trivia show has barred Canadian residents from registering online for testing, the compulsory first step in the process that could eventually lead to an appearance in person before host and fellow Canuck Alex Trebek.
In a statement sent to numerous Canadian media outlets, including the CBC, the show's producers blamed the “ever-changing and complex” nature of “international laws governing how information is shared over the Internet” for the ban.
“We are making every effort to find a solution before the next round of testing is available," the statement added.
“The only recent law to affect information transmission over the Internet is the Canadian Anti-Spam Legislation (CASL), which also happens to set out some very large penalties for those who run afoul of its rules,” says Pearn, a media and privacy lawyer with Foster & Company.
Individuals who breach CASL are liable to administrative monetary penalties of up to $1 million per violation, while corporations can face fines as steep as $10 million per violation. The law bans the sending of unsolicited commercial electronic messages, unless the sender has received explicit or implied consent from the recipient.
Although the release doesn't explicitly state that CASL was the cause of the game show's present prohibition on Canadian contestants, Pearn tells AdvocateDaily.com it's possible the show wants to avoid an overt admission of possibly having breached CASL. Although implementation of the law was mired in delays for years, CASL has been in force for more than a year now, leaving plenty of opportunities for violations by businesses operating without a tailored compliance plan.
“Nobody is going to want to admit that they've been doing it wrong or falling foul of particular legislation, especially considering the size of the potential penalties,” Pearn says.
Pearn’s own firm had to address its newsletter subscription, losing a number of subscribers in the process, in order to stay on the right side of the law. He says that was thanks to the newsletter’s partially commercial purpose.
“Even though our newsletter is not in and of itself making a sales pitch, but rather an information resource, it does impliedly encourage people to work with us,” Pearn says. “We invited our readers to explicitly consent to receiving it and also advised our readers of their rights and remedies under CASL.”
Pearn says similar concerns may have been raised by lawyers working with Jeopardy! about the commercial purpose of online invitations made to Canadian fans to take part on the show, as maintaining the Canadian audience and Canadian advertising market have a bearing on the program's bottom line. Jeopardy! does approach its fans via Twitter and through other online mediums.
“Our population is about the same as California, so it may matter to Jeopardy! to have viewership in Canada,” he says. “One way to drive up viewership is to have contestants on from Canada and to pose questions focused on Canadian history and geography.”
However, Pearn is confident that Jeopardy! can ultimately find a solution, suggesting the show will have implied consent for the receipt messages from many of the Canadians it interacts with.
Alex Trebek himself also sounded hopeful in a statement he gave to the Ottawa Citizen:
"We have had many Canadians as contestants throughout the history of the show, and we hope that will continue, because Canadians make great game-show contestants. We look forward to having more try out as soon as we are sure we can comply with all Canadian online privacy laws," wrote the Sudbury, Ont.-born host.
Until then, Pearn and other Canadian lawyers will have to temporarily shelve any thoughts of appearing on the show.
Pearn says Jeopardy! breaks from study were common during his law school years.
“We'd be there in front of the TV at 7.30 p.m. to watch before heading back to the library to get to work,” he says. “It's a fun game, designed for people who love trivia, and there is nobody who loves the trivial more than lawyers.”