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Two executives meet at a function and exchange business cards. This makes the information public and allows it to be exchanged freely without worrying about contravening any privacy laws. Right? Not so, says the Privacy Commissioner of Canada, who has ruled that a business e-mail address is personal information protected under the federal privacy legislation in a landmark decision involving spam last December. "The case surrounded whether business e-mail is personal information and the commissioner found that it did not fall within the exemption - many people call it the business card exemption," said Ottawa lawyer Dan Palayew, who specializes in labour, employment and privacy law at Ogilvy Renault. "The intent of the decision is to protect individuals from spam at work that is not work-related. While many commentators have expressed shock at this, when you look at it in the context of the problem that spam has become and the broad purpose to protect personal information that this legislation covers, then it's not that unusual." The case involved the Ottawa Renegades football team and University of Ottawa law professor Michael Geist, one of Canada's leading e-commerce and privacy law experts. The Renegades sent an unsolicited commercial e-mail to Mr. Geist's university e-mail address hoping the professor would be interested in buying season tickets. The football team's sales and marketing staff had gathered the e-mail addresses of university employees from a public online directory. While he asked the football club to remove his e-mail address from its marketing list, the same message arrived a few days later in his other office e-mail inbox at Ottawa law firm Osler, Hoskin & Harcourt. Mr. Geist filed a complaint with the federal Privacy Commissioner alleging that the Ottawa Renegades had collected his personal information and used it without his consent. The commissioner agreed. "I think the decision sends a clear signal to the business and privacy communities that our national privacy law does apply to unsolicited commercial e-mail," said Mr. Geist, who is a Canada Research Chair in Internet and e-commerce law. "However, it also highlights some of the law's limitations, since an expensive and lengthy application to the federal court is needed in order to levy a penalty. Moreover, the deterrent value of the decision is limited by the privacy commissioner's policy of keeping the identity of targets of complaints such as the Renegades secret." The opinion was not a legal ruling, but could have been taken to Federal Court within 45 days. Mr. Geist did not pursue further action. Under the Personal Information Protection and Electronics Document Act (PIPEDA), essentially all the information on a business card -- title, name, and business address and telephone number -- is not considered to be personal or protected under the legislation, which came into effect Jan. 1, 2004. Because e-mail addresses are not specifically mentioned in the Act, Assistant Privacy Commissioner Heather Black pointed out in her ruling that an e-mail address, whether publicly available, is not covered by the PIPEDA exemption. The ruling said that the football team erred because the use of Mr. Geist's e-mail address was not directly related to the reason the information had been made public on either Web site. "You are allowed to collect and use publicly available information, but the use has to be directly related to the purpose for which the information appears in a directory or notice," Mr. Palayew explained. "The expectation is that any contact would have the intention of furthering the organization's interests." For example, it could be argued that a law book publisher would have a good case for contacting a university law professor about a new publication or a pharmaceutical company might be able to e-mail doctors about a newly developed drug. Nevertheless, the ruling may also raised a number of other questions, such as whether a businessperson's fax details are protected personal information because it is not a standard telephone number. Part of the problem with spam is that the cost benefit of sending bulk e-mail is too attractive to resist. "Your name and address is not protected and if spammers wanted to do it that way and stuff it in an envelope, but they'd have to put a stamp on it and that costs money," Mr. Palayew said. "E-mail is cheap to send - it's a mass marketer's delight." So, it might be premature to expect inboxes across Canada to stop filling with spam. "I don't think it's going have the chilling effect that the privacy commissioner intended on spam and certainly my inbox hasn't seen any decrease," he said. Mr. Palayew suggested a number of companies need to re-evaluate their marketing efforts and businesses need to look closely at the ruling. "Businesses should be careful because Mr. Geist did not pursue it in Federal Court, but the next person might. So, businesses have to be careful and they might want to rethink their practices." By Jeff Pappone Special to the Ottawa Business Journal