June 20, 2014

What is Canada’s Anti-Spam Legislation?

– You’ve probably been receiving a lot of emails lately asking for your consent to receive further electronic messages.

– These emails arise from new Canadian legislation with the not-so-memorable full title, “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (“the Act”).

– The Act comes into force on July 1, 2014.

– The Act provides the Canadian Radio-television and Telecommunication Commission (“CRTC”) the authority to regulate certain forms of electronic contact consisting of the sending of commercial electronic messages (CEMs).

– The Act also provides the CRTC with authority to regulate the alteration of transmission data in electronic messages, and the installation of computer programs on another person’s computer system, in the course of a commercial activity.

What Are the Key Points to Know About the Act?

– Although the Act deals with more than just sending commercial electronic messages (“CEM”), this is the aspect of the legislation which has gained the most attention in the media.

– The fundamental underlying principle is that a CEM can only be sent out with consent.

What is a CEM?

– The CRTC website says that if one of the purposes of the electronic communication is “to encourage the recipient to participate in commercial activity” then the communication may fall under the category of a CEM.

What do I do to ensure that I am sending a CEM in compliance with the “Anti-Spam” legislation?

– Prior to sending a CEM, the sender of the proposed CEM must do the following:

1. Obtain express or implied consent from the recipient;

2. Provide identification information; and

3. Provide an unsubscribe mechanism.

How Can I Obtain Express Consent Before Sending a CEM?

– Express consent is the “gold standard” and can be obtained either in writing or orally.

– The CRTC has issued information bulletins to provide guidance and examples of recommended or best practices. Compliance and Enforcement Information Bulletin CRTC 2012-548, among other things, helps explain what information is to be included in a request for consent.

– The CRTC has indicated that a person giving express consent must take some positive action to do so (e.g., checking a box). The CRTC has also said that express consent cannot be bundled into the terms and conditions attached to a product or service, nor be a condition of sale. In other words, express consent must be sought separately.

What If Express Consent Isn’t Received Before The Act Comes Into Force?

– The Act provides that consent to send CEMs is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs.

How Do I Know if I Have Implied Consent of A Recipient to Send a CEM?

– Consent under the Act is also implied if you have an existing business relationship (or existing non-business relationship) with the recipient

– However,  there are certain specific requirements to be met with respect to an “existing business relationship.”

Does Implied Consent Based On An Existing Business Relationship Last Forever?

– Implied consent, unlike express consent, is not indefinite under the Act

– In most cases, implied consent only permits communication using CEMsfor two years from the situation giving rise to the applicable relationship

– As such, it will be critical to develop a means to track the currency of all relationships upon which any implied consent is based.

– Tracking takes time and effort; obtaining express consent is preferable, if possible.

The final regulations with respect to the CASL are found here.

Happy Spamming.