Canada's new "Anti-Spam Act" was passed
in December 2010, but has not yet come into force. The greatest
impact on Canadian businesses will be that sending electronic
messages which encourage participation in a commercial activity
will require express or implied consent from the recipient.
Commercial electronic messages include e-mail, social networking
accounts and text messages.
The consent requirement introduces an entirely new regime in
Canada which will be one of the most onerous in the world. In order
to rely upon implied consent, the technical rules contained in the
Anti-Spam Act and its regulations must be followed.
If express or implied consent to a message is obtained, the
message must comply with certain form and content requirements
including an unsubscribe mechanism.
Industry Canada issued initial draft Regulations in July of 2011
for consultation. The Regulations have been revised and the
deadline for businesses to submit comments on them is February 4,
2013. The proposed Regulations, together with Industry Canada's
Regulatory Impact Analysis Statement, are available here.
The CRTC passed Regulations under the Anti- Spam Act in
final form last year and therefore the Industry Canada Regulations
supplement the CRTC Regulations.
On the whole, the Industry Canada Regulations "fine
tune" matters under the Anti-Spam Act. For most
businesses, the proposed Regulations will not make a big difference
regarding compliance with the Anti- Spam Act when it
For example, the Industry Canada Regulations include certain
exemptions for commercial electronic messages that are sent within
a business, or sent between businesses that are already in a
business relationship, where the messages are sent by an employee,
representative, contractor or franchisee and are relevant to the
business, role, function or duties of the recipients.
Further exemptions are available for messages that are solicited
or sent in response to complaints and requests, and for messages
sent due to a legal obligation or to enforce a legal right.
Foreign entities outside of Canada are granted some relief
because an exemption is proposed for messages relating to an
organization located outside of Canada and accessed in Canada. The
sender must not know or reasonably expect that the messages would
be accessed in Canada. Industry Canada intends that this exemption
applies to visitors to Canada.
It is important for everyone to review their current practices
with respect to commercial electronic messages in order to ensure
compliance when the Anti-Spam Act becomes law. Once the
Act comes into force, a three-year transitional period
will apply where broader provisions will be in place with respect
to pre-existing relationships. It is quite possible that a business
will have recipients on its electronic mailing list who will not
qualify under the transitional provisions and therefore express
consent to the receipt of commercial electronic messages will be
No official announcement has been made regarding the date on
which the new Anti-Spam Act will become law - it might be
late in 2013 or early 2014.
We will continue to monitor the Anti-Spam Act and any
regulations, and will issue a subsequent newsletter when the date
that the Act will become law is known.
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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