As we recently reported, new legislation in Canada regulating
electronic messaging and spyware (CASL or Canada's Anti Spam
Law1) was passed in December of last
year and is awaiting proclamation (see our
Osler Update of July 5, 2011).
Draft regulations under CASL have now been published for public
comment by the Canadian Radio-Television and Telecommunications
Commission (CRTC) and Industry Canada.
The draft regulations have significant implications for
businesses that use email and other forms of electronic
communications to reach their customers and other third
Notable aspects of the regulations include:
Detailed and expansive rules regarding the information to be
included in commercial electronic messages and requests for
Requirements that requests for consent and certain
acknowledgements be "in writing" (which, due to a
provision of Canada's electronic documents law, may, as
written, foreclose reliance on electronic communications and which
will eliminate oral consent given to customer call centres);
Restrictions on the number of "clicks" (2) required
to use an unsubscribe mechanism (which may create operational
challenges for organizations);
Narrow definitions of "family relationship" and
"personal relationship" (which may have material
implications on the use of "refer a friend" programs);
Detailed rules regarding the collection of consent on behalf of
unknown third parties, including an obligation on the person
collecting consent to ensure that the third parties give effect to
a withdrawal of consent (which may constrain obtaining consent on
behalf of other participants in distribution chains).
The draft CRTC and Industry Canada regulations are subject to a
comment period until August 29th and September 7th 2011,
respectively. As the draft regulations significantly impact many of
our clients, we are encouraging clients to consider submitting
comments during this consultation period.
1 An Act to promote the efficiency and adaptability of the
Canadian economy by regulating certain activities that discourage
reliance on electronic means of carrying our commercial activities,
S.C. 2010, c. 23, formerly referred to as the "Fighting
Internet and Wireless Spam Act.
Michael Fekete's practice focuses on
outsourcing, information technology, e-commerce and privacy.
Nicole Kutlesa regularly advises on marketing,
trade practice, regulatory and privacy matters with a particular
emphasis on food, drug, cosmetic, medical device and other
regulated products. Patricia Wilson has advised
and represented Canadian and U.S. companies on regulatory matters
involving federal and provincial governments in Canada.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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).