In July of 2012 I wrote an
entry for this blog discussing Canada's pending anti-spam
legislation. On January 5, 2013 Industry Canada
released a revised set of proposed regulations to the
legislation, titled the Electronic Commerce Protection
Regulations. There is a 30 day period for any comments to
be submitted to Industry Canada.
Some of the proposed provisions are a restatement from prior
drafts of the regulations, but Industry Canada has responded to
previous submissions by expanding and clarifying some of the
exemptions to the broadly-stated message prohibitions in the
anti-spam legislation. Of particular note are the following
Consent will not be required to send a message if the parties
have a "family relationship" or "personal
relationship". The proposed regulations define both
these terms, and would now expand the concept of "personal
relationship" to be a subjective test involving prior
voluntary, two-way communications. This may provide some
relief against accidentally labelling otherwise innocent messages
as "spam", but the subjective nature of the test could
create some uncertainty.
In response to extensive submissions, Industry Canada has
introduced a "third party referral" exemption, permitting
limited messages to be sent to someone who has been referred to the
message sender as a result of an existing business
relationship. Without this exemption, the legislation's
concept of spam could be applied to the unsolicited message acting
on a referral. This attempts to strike a balance
between the right to be free from unsolicited messages, and
the real world manner in which legitimate referrals often
occur. However, some commentators have noted that this
exemption may dilute the overall effectiveness of the
ONGOING "BUSINESS TO BUSINESS"
The proposed regulations introduce a welcome and needed
exemption for circumstances where employees, representatives,
franchisees or contractors of an organization are
communicating with each other about that organization's
affairs, and also for communications between representatives or
contractors of separate organizations where there is an ongoing
business relationship between the organizations. This is
intended to avoid prohibiting legitimate business and service
provider dialogue, which might otherwise inadvertently fall within
the classes of messages prohibited by the legislation.
New exemptions are also being introduced for messages sent in
satisfaction of legal obligations or to enforce legal rights.
The draft regulations would create a number of other technical
exemptions designed to alleviate a variety of specific concerns,
such as an exemption for messages transmitted by foreign
senders to foreign-resident recipients who happen at the time to be
travelling in Canada, as the message would then pass through a
"computer system in Canada" and would otherwise be caught
by the broad terms of the legislation. However,
some exemptions requested in prior submissions were not
implemented – such as a clarification of the ability of
product manufacturers to communicate directly with end users of
their products. While other exemptions might be available to
a manufacturer in any particular fact situation, there is no
explicit exemption for such manufacturers.
Industry Canada has also indicated that some further
clarification may yet come through "guidelines"
interpreting the legislation.
After receiving comments in February, 2013, Industry Canada will
probably proceed to finalize the regulations in the first quarter
of 2013, with a view to bringing Canada's anti-spam laws into
effect soon thereafter.
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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