While Canada remains one of the last
developed countries to implement anti-spam legislation, it has
responded with some of the toughest anti-spam legislation in the
world. The new law is designed to protect Canadians from receiving
commercial electronic messages unless the recipient has
specifically "opted-in" and consented to such messages,
and certain required elements (such as an unsubscribe mechanism)
are included in each message.
While the legislation was passed in December
2010, a specific date for the anti-spam legislation's coming
into force has not yet been set. However, many commentators are
predicting that the legislation and its regulations will likely
come into force before the end of this year.
The anti-spam legislation goes against the
trend in other countries which have adopted an "opt-out"
approach. This means that recipients must agree to have a message
sent to them prior to it being sent, as opposed to having to
unsubscribe to opt-out of receiving further messages. This system
creates a perplexing problem for message senders as they will
require advance consent in order to send messages.
Penalties under the Canadian anti-spam
legislation are severe in the event of non-compliance. The
penalties range from up to $1,000,000 for individuals, and up to
$10,000,000 for businesses and organizations. Moreover, directors
or officers may be found to be personally liable for violations,
and there is also a separate right for affected individuals to
bring a statutory claim for compensatory damages arising from the
For most businesses, existing consents will
not be sufficient under the new rules and fresh consents will need
to be sought from recipients. In addition, there will be no
phase-in period for compliance to allow business and organizations
time to implement the requirements of the legislation. Instead, the
government is urging businesses and organizations to act now and
begin reviewing their activities to prepare for compliance.
The detailed working Regulations under this
new legislation have not yet been published (at the time of
writing) in their final form. It is likely that some period of time
will be allowed following publication of the Regulations and the
coming into force of the legislation, to enable preparations to be
made for compliance.
There will also be an initial 3-year
transitional period during which consent to send commercial
electronic messages will be implied, where there is a pre-existing
relationship with the recipient.
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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