U2’s forced iTunes album download might have violated Canada’s anti-spam laws

It was spam in the eye of many users, but what about the law?

Apple CEO Tim Cook and U2 band members Bono, The Edge and Larry Mullen Jr.

Apple CEO Tim Cook with U2 on September 9, 2014, announcing a free download of the band’s latest album for all iTunes customers. The download turned out to be mandatory. (Justin Sullivan/Getty)

Bono has apologized for automatically inserting his band’s latest album into iTunes users’ libraries, but that may not be enough to keep U2 and Apple clear of Canada’s recently enacted anti-spam laws.

A spokesperson for the Canadian Radio-television and Telecommunications Commission says the regulator has received two “contacts” regarding the recent mass giveaway, but added that such communications don’t necessarily equate to official complaints.

The CRTC has received more than 100,000 anti-spam complaints since Canada’s Anti-Spam Legislation (CASL) took effect on July 1, but it has not yet broken those out into specifics or signaled which it will be moving to enforce. The spokesperson could not confirm whether complaints relating to the U2 stunt are among them.

MORE: Why you should stop worrying and learn to love Canada’s new anti-spam laws »

The regulator is charged with overseeing CASL, which prohibits the spread of commercial electronic messages to individuals without their express consent. Violating the law carries with it a penalty of $1 million for individuals or $10 million for businesses. Additionally, a second phase of the legislation that prohibits the installation of computer programs without users’ consent comes into effect on Jan. 1, 2015.

A spokesperson for Apple declined to comment when reached.

U2 and Apple raised the ire of some users in September when they attempted to set a new record with the band’s new album, Songs of Innocence, by inserting it for free into iTunes libraries. Reaching an estimated 500 million iTunes accounts, the album easily became the largest record release in history.

Some users expressed anger, either because of a disdain for U2 or for Apple placing files onto their devices without consent. Many likened the move to sending spam email:

Shortly after the release, Apple issued instructions on how to remove the album.

Bono also apologized last week in a video on the band’s Facebook page. “Oops, I’m sorry about that,” he said. “I had this beautiful idea and we kind of got carried away with ourselves. Artists are prone to that kind of thing. Drop of megalomania, touch of generosity, dash of self-promotion and deep fear that these songs that we poured our life into over the last few years mightn’t be heard. There’s a lot of noise out there. I guess we got a little noisy ourselves to get through it.”

For CASL experts, the giveaway raises a number of questions related to the wording and implementation of the legislation, as well as to how the CRTC plans to enforce it. The law is broad and still new enough that no one really knows how it will be interpreted.

MORE: The CRTC will take a light touch enforcing Canada’s new anti-spam law—for now »

David Elder, a lawyer at Stikeman Elliott, doesn’t think the giveaway would be considered a violation of CASL because it does not touch at the core of the legislation’s intent, which is to limit spam. If Apple had sent an email advising iTunes users that the album was available, that might have been a different story, but song files probably wouldn’t be considered commercial electronic messages.

“It’s not really caught by the core anti-spam provisions,” he said.

On the other hand, the intent behind the giveaway could be construed as the same that motivates common email spam, which might fall into the interpretation.

“A promotional album from a band may in fact be encouraging someone to listen to further U2 music, or whatever it is,” says Ryan Black, a lawyer and co-chair of information technology at McMillan. “A lot of whether [CASL] will apply or won’t apply depends on what the CRTC is willing to do with it.”

Experts also aren’t sure whether CASL’s second phase—the part that deals with the installation of computer programs—would apply, even if it were in place back in September when the U2 stunt took place. Albums are data files, but the law appears to only cover executable files, Elder said.

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Then again, files that are part of applications—like albums linked to iTunes—are questionable too. “When you look at the language of CASL, it’s not at all clear,” Black says.

To that end, further guidelines on how CASL’s program installation prohibitions will be interpreted will be issued soon, the CRTC spokesperson said.

Whatever the case may be, Black cautions that businesses engaged in any form of online promotions need to be extraordinarily careful until the regulator signals how it’s going to interpret complaints.

In the case of U2 and Apple, the band and company could have avoided any potential problems by simply taking a different approach.

“One questions why they couldn’t have just released the album on iTunes for free and then people could have chosen to add it to their account or not,” he said.