Canada: Fighting Spam And Spyware Canadian Style — Part I

Canada recently enacted an anti-spam law that is likely to be effective in late summer/early fall of 2011, but it is very different from what other countries have done.

In addition to addressing what most Internet users would characterize as spam (namely unsolicited mass e-mail), the new Canadian legislation covers just about any form of "commercial electronic message" where the sender has not received the recipient's express or implied consent. That's right — it's very broad indeed.

The expansive nature of this law can be best understood in contrast to the anti-spam legislation of other countries. All these rules are aimed at preventing unwanted e-mail (and the extra costs and risks they present), but the international legislation typically requires a degree of fraud or misinformation before making it illegal — whereas the Canadian law does not have such limitations. Thus, it is well worth drilling down into the new law, because it applies to virtually every organization — and individual Internet user as well — in Canada, not just the usual spammer suspects.

What's in a Name?

But let's start with the new law's name. In its early bill version, it was referred to in shorthand as the Fighting Internet and Wireless Spam Act (FISA). This handy brief title was removed in the final version of the law and not replaced.

Instead, we have a fairly daunting purpose clause that reads as follows:

The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct

  1. impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;
  2. imposes additional costs on businesses and consumers;
  3. compromises privacy and the security of confidential information; and
  4. undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.

And given this purpose, the name of the new law is "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... ." For purposes of this discussion, we're going to call the statute FISA anyway, because that's a useful handle, and because calling it by the acronym of the new statute's name (namely, "TPTEAAOTCEBRCATDROEMOCOCA") is somewhat unwieldy.

Unsolicited Electronic Messages

The core prohibition of FISA can be stated very succinctly: the law forbids a sender transmitting to an electronic address a commercial electronic message unless the receiver consents to receiving it. Let's parse this busy sentence.

First, what is a "commercial electronic message"? It's very broadly defined in FISA to include any electronic message the content of which "encourages participation in commercial activity," including an electronic message that: offers to purchase a good or a service; offers to provide a business, investment or gaming opportunity; advertises or promotes any of the foregoing; or promotes a person who does any of the foregoing.

And here's an interesting twist: an electronic message that contains a request for consent to send a message described in the previous paragraph is also considered to be a commercial message. So how, you may well ask, does someone get consent from a potential recipient to send a commercial electronic message in the first place? More on that later.

It is also important that "electronic message" is defined very broadly in FISA to mean a message sent by any means of telecommunication, including a text, sound, voice or image message. For example, electronic messages would include postings on Facebook and other social media sites, as well as "tweets" (as messages conveyed by the Twitter service are known). As for the recipient, an "electronic address" is defined as an address used in connection with the transmission of an electronic message to: an e-mail account, an instant messaging account, a telephone account or any similar account.

Not surprisingly, in keeping with the technology — neutral drafting style of Canada's other e-commerce/computer laws (think the provincial e-commerce statutes, the computer crime sections of the Criminal Code, etc.), FISA is drafted in a manner to accommodate all manner of today's e-messaging platforms, as well as those of tomorrow.

Lots of Exceptions

While FISA's general prohibition against any unsolicited commercial electronic message is very broad, the law does provide a goodly number of exceptions. Here are the bulk of them (in no particular order of importance):

  • an electronic message sent for purposes of law enforcement or public safety (and the like) is not considered to be a commercial electronic message;
  • messages between individuals who have personal or family relationships, as defined in still unwritten regulations, are exempted;
  • an inquiry message to a business person is exempted, so long as the message pertains to the recipient's commercial activity (you can see some notorious spammers trying to wedge their activity into this exception);
  • messages that provide quotes for products requested by the recipient;
  • the provision of warranty information to a recipient who has purchased goods or services;
  • provision of factual information about a product or service offered under a subscription or similar basis;
  • messages pertaining to an employment relationship;
  • messages pertaining to product updates/upgrades to a recipient entitled to receive them;
  • messages that constitute interactive, two-way voice communication;
  • messages consisting of fax transmissions to a telephone account; and
  • a voice recording sent to a telephone account.

Consenting Message Senders/Recipients

Another way to avoid running afoul of the core legislated prohibition of FISA is for the sender to receive express consent from the intended recipient of the electronic message. Where this path is chosen, the sender must set out clearly and simply the purpose for which the consent is being sought.

Express consent plays a major role in many of our e-commerce legal regimes. Under the typical provincial electronic commerce statute, a party wanting to create contracts online or by some other electronic means typically has to first obtain the consent of the proposed counter party. And in the privacy law context, invariably a collector of another party's personal information requires the latter's consent in order to collect, use or share such personal information. In order to be valid, such consent must be well informed in order to be meaningful and effective. Expect that a similar standard will develop for express consent under FISA.

Implied Consent

On the other hand, the scope for arguing "implied consent" by the recipient is quite circumscribed under FISA. Consent is implied only if one of the following conditions exists:

  • the sender and recipient have "an existing business relationship" (more on what this means below);
  • the sender and recipient have an "existing non-business relationship" (again, see below); or
  • the recipient has conspicuously published his electronic address, has not said he doesn't want to receive unsolicited messages and the sender's message is relevant to the recipient's business.

An "existing business relationship" means, in a nutshell, that the sender and recipient have done some business together in the two years before the message is sent, or an inquiry was made by the recipient in the six months before the message is sent.

An "existing non-business relationship" means a situation where the recipient has made a donation to or performed volunteer work for a charity or political party in the previous two years preceding the message. Further categories to both existing "business" and "non-business" relationships might be fleshed out in future regulations made under FISA.

Notification and Unsubscribe

Assuming the sender's commercial electronic messaging practices satisfy the conditions noted above, FISA goes on to provide that the message must be in the prescribed form (not yet promulgated), and must set out information that identifies the sender. In addition, the message must contain contact information for the sender.

Finally (are you still with us?), the message must contain an "unsubscribe" mechanism that satisfies the following criteria: it must enable the recipient to indicate — at no cost — that they no longer wish to receive any commercial electronic messages, using the same means as the message sent by the sender, or if those means are not possible, then other electronic means.

As well, the sender must specify an Internet address where the recipient could express his desire to unsubscribe — and this site must be available for at least 60 days after the message is sent. And then the sender must act on the recipient's wishes within no more than 10 days. All in all, quite a tight process.

Consequences of Contravention

If by this point of the exposition of the new law you're wondering if all this hassle is worth it — well, think again, because the consequences of non-compliance are serious. FISA provides for a wide range of remedies, including a fine for non-compliance of $1 million for an individual and $10 million for corporations. Moreover, an officer, a director or agent may also become personally liable if they participated in, directed, authorized or acquiesced in the specific activity.

Finally, there is a private right of action created by FISA. This is an intriguing provision, presumably heralding an era of private law enforcement of this new statute (as governments continue to be challenged by the task of tackling the spammers directly).

In the next edition, we consider the anti-spyware elements of FISA, and practical dos and don'ts that need to be considered in light of the new law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.