At the end of 2010, Canada enacted strict anti-spam legislation
(the "Act") relating to the sending of electronic
messages, as well as to other aspects of online commercial
activity. Implementation of the Act has been delayed by
public consultation regarding draft regulations. At this time
regulations created by the Canadian Radio-television and
Telecommunications Commission ("CRTC") have been
finalized, but additional regulations have yet to be finalized. It
is expected that the Act will be proclaimed in force some
time in 2013.
The Act is not limited to preventing wide-scale or
mass-market spam messages: it will apply to the sending of
any commercial electronic messages
("CEMs"), including email messages, SMS messages, or
other electronic messages sent for a commercial purpose. The
Act creates a consent regime, and requires that senders
include particular content and a clear opt-out mechanism.
In addition, the Act limits certain forms of online
commercial activity, including unauthorized harvesting of email
addresses, misleading electronic communications, and prohibiting
unauthorized installation of computer programs.
The Act includes large fines for failure to comply and
also permits a private right of action for those individuals
affected by an organization's non-compliance.
There are three general requirements for CEMs:
Identification Requirements: The Act
requires that CEMs identify the person who sent the message and (if
different) the person on whose behalf it is sent, including
reference to accurate contact information. If it is not practicable
to include contact information in the message, information may be
provided by a link to a web page that sets out the necessary
Consent Requirements: The Act
requires the existence of express consent from recipients prior to
the sending of a CEM, subject only to limited exceptions. The
sending of an electronic message requesting express consent will
itself be considered a CEM. Therefore express consent must
be sought prior to the coming into force of theAct, or must be sought
in some other manner (such as in a non-electronic form that would
not be captured in the definition of a CEM). The Act also
requires notice that consent may be withdrawn by the
Unsubscribe Requirements: CEMs must include a
clear and prominent unsubscribe mechanism, such as by way of reply
email or other simple means. The recipient's choice of the
unsubscribe option must be given prompt effect.
Of these three requirements, compliance with the consent
provisions will likely be the most challenging. Organizations
should carefully consider the steps necessary to obtain
Existing Business Relationships: Consent to
receive CEMs may be implied in certain circumstances, including in
relation to existing business relationships. However, the
Act contains limitations on the period of time during
which organizations can rely on this implied consent. The relevant
period will provide organizations with a time-limited opportunity
to seek explicit consent, after which the original implied consent
Limitations on Oral Consent: Although express
consent can be obtained either orally or in writing, a recent CRTC
Enforcement Bulletin has placed severe restrictions on the use of
oral consent. This Bulletin indicates that oral consent will only
be available where this form of consent can be verified by an
independent third party, or where there is a complete audio
recording of the consent. Although Enforcement Bulletins do not
have the force of law, they do indicate how the CRTC currently
intends to interpret the Act. Unless there is a change to
the CRTC's intended interpretation of the Act, proof
of oral consent will likely be out of reach for most
Limitations on Toggling: In some circumstances,
online forms may be useful in obtaining express consent. However, a
further CRTC Enforcement Bulletin indicates that pre-checked boxes
that a user must uncheck (called "toggling") will not
constitute adequate express consent. Organizations should offer
individuals the option of checking a box themselves, or of
performing some other act to choose to accept CEMs, such as by
entering their email address in a form, rather than relying on any
sort of pre-checked option.
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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