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As business professionals operating in Canada, you and your
business will soon be subject to Canada's new "Anti-Spam
Act", expected to come into force later this year or early
2013. The new legislation will greatly impact how you and your
businesses treat the sending of electronic messages that encourage
participation in a commercial activity ("commercial electronic
messages") as well as other electronic threats to
commerce.
In today's increasingly technological society, it is
important for everyone to review this legislation and start
evaluating your existing activities in order to prepare for
compliance.
What are the main prohibitions:
The Anti-Spam Act ("the Act") prohibits more than just
spam. It regulates certain activities that discourage reliance on
electronic means of carrying out commercial activities.
Under the Act, you are prohibited from:
sending commercial electronic messages without the
recipient's consent (this includes email, social networking
accounts, and text messages);
altering transmission data in an electronic message, resulting
in the message being delivered to a different destination without
express consent;
installing computer programs without the express consent of the
owner of the computer system or its agent, such as an authorized
employee;
using false or misleading representations online in the
promotion of products or services;
collecting personal information through accessing a computer
system in violation of federal law; and,
collecting electronic addresses by the use of computer programs
or the use of such addresses, without permission (address
harvesting).
The Consent Requirement:
The most important thing to keep in mind is the consent
requirement, and remember there is a "reverse onus"
obligation included in the Act. If investigated, you must also be
able to prove that you obtained consent, express or implied.
Consent is implied under the Act in some cirmstances where there
is an existing business or non- business relationship between the
sender and recipient or the recipient has published or disclosed an
electronic address without stating the wish to not receive
unsolicited messages. However, once the Act comes into force, there
is a transitional period where a person's consent in these
pre-existing relationships is implied only until: (1) they give
notice that they retract consent, or (2) three years after the day
the Act came into force, whichever is earlier.
All commercial electronic messages are also required to identify
the sender, provide his or her contact information, and include an
unsubscribe mechanism that can be readily performed by the
recipient to indicate the wish to no longer receive any further
commercial electronic messages.
Steps to protect your business:
Don't be caught unaware. This is an Act you want to take
seriously.
You could be fined up to $1 million per violation as an
individual, or up to $10 million per violation as a business
entity.
Below are some tips to help you prepare:
Determine which of your electronic communications would fall
under "commercial electronic messages" and be caught by
the Act.
With respect to communications caught by the Act, review your
database of contacts in order to determine whether consent will be
required for future communications.
Establish procedures for obtaining recipients' express
consent to receive electronic communications
Establish procedures to maintain lists of recipients who have
given an implied consent, including removing recipients when
implied consent expires (usually after two years, but subject to
the transitional provisions).
Prepare forms of communications to comply with the Act so that
they include all of the requisite information and the unsubscribe
mechanism.
For more information on the Anti-Spam Act, visit here.
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.
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