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 parties.
Notable aspects of the regulations include:
- Detailed and expansive rules regarding the information to be included in commercial electronic messages and requests for consent;
- 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); and
- 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.
Footnote
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.