On Saturday, January 5th, draft regulations were published in the Canada Gazette. These Regulations define some key terms in the Anti-Spam legislation or CASL. The legislation was granted Royal Assent on December 10, 2010 and we have been awaiting republication of these Regulations for some time.
The Regulations are intended to provide "clarity and legal certainty" to some of the key terms in the legislation. Whether they do or not remains to be seen. In the coming weeks, we will provide additional commentary on these new Regulations and what we think their impact will be. In the meantime, here are some of the highlights.
Personal Relationships and Family Relationships – These relationships are intended to be exempted from the anti-spam legislation. The proposed Regulations define "personal relationship" as a relationship between two people who have had voluntary communications where it would be reasonable to conclude that the relationship is personal, unless the recipient has asked to no longer receive commercial electronic messages. Determining whether the relationship is personal is to be based on a non-exhaustive list of factors on a case by case basis.
"Family relationship" is defined in a manner that is in keeping with definitions in the Income Tax Act. They also specify that it is intended to refer to persons descending from a common grandparent, including aunts, uncles, cousins, nieces, and nephews.
Certain Types of Business Messages -The Regulations also recognize that the broad definition of a commercial electronic message also captures regular business communications that are not "spam" and do not represent the types of threats intended to be addressed by the legislation. The following messages are therefore to be exempt:
- Messages sent within a business;
- Messages sent between businesses that are already in a business relationship, where the message is sent by an employee, representative, contractor or franchisee and are relevant to the business, role function or duties of the recipient;
- Messages solicited or sent in response to complaints and requests;
- Messages sent due to a legal obligation or to enforce a legal right;
- Messages relating to an organization located or provided outside Canada and accessed while the recipient was visiting Canada.
Third Parties - consent to receive messages from a third-party is only valid if the individual providing consent will have the ability to unsubscribe to the message and alert the original requester that their consent is withdrawn. When consent to receive messages from a third-party has been withdrawn by the individual, the original requester must notify each third-party to whom the consent was provided that it was withdrawn.
Other Issues Dealt With – Telecommunications service providers will not need consent to install a computer program for the limited purpose of preventing illegal activities that present an imminent risk to the security of its network or to install software on devices across an entire network for update and upgrade purposes. There will also be an exemption for Third Party Referrals, where there is an existing family, personal, business or non-business relationship and the referral is to somebody with whom there is an existing relationship.
"Membership" in a club, association or voluntary organization is defined as having applied for, met the formal requirements to belong to and having been accepted as a member in accordance with the membership requirements of the organization. "Club," "association" or "voluntary organization" are defined as "non-profit organizations that are organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any other purpose than profit, if no part of the income of which was payable to, or otherwise available for the personal benefit of any proprietor, member or shareholder of those organizations unless the proprietor, member or shareholder is an organization the primary purpose of which is the promotion of amateur athletics in Canada".
Will these regulations provide more clarity? That remains to be seen.
About BLGThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.