While the Canadian federal government's anti-spam
legislation is not yet in force, many businesses are starting to
prepare for compliance.
The law is broad; it applies to any electronic message that is
sent, routed, or retrieved using a computer system in Canada, and
the penalties for non-compliance are steep. Virtually every person
and business in Canada (and many outside of Canada, in particular
the United States) will be affected and need to rethink how they
send emails, voicemails and other telecommunications.
(It is broader and more onerous than American anti-spam
legislation, so compliance with the US CAN-SPAM Act will not be
The Canadian legislation prohibits any person from sending (or
causing or permitting to be sent) a commercial electronic message
unless the recipient expressly or implicitly consents to receiving
the message. That's going to be a tough rule to follow,
especially since very few people actually respond to requests for
consent, particularly requests sent by email.
Some other key points are as follows:
Not just e-mail: The definition of
"commercial electronic message" is very broad and
includes any message sent by telecommunications (including e-mail,
text messages, voicemail, social media communications, etc.) if the
purpose of that message is to encourage participation in a
Not just spam: The law also prohibits hacking,
malware, online fraud, electronic harvesting and privacy
Consent: Commercial electronic messages cannot
be sent without the recipients' consent. Consent can be express
or implied, and there are specific rules for how to obtain consent.
There are also some limited exceptions to the consent
Identification: All commercial electronic
messages must identify the person who sent the message (and if
different, the person on whose behalf it was sent); provide
accurate contact information for these parties; and send out a
mechanism by which the recipient may unsubscribe. The law also
requires other disclosures, and contains specific rules regarding
how the disclosures can be presented.
Unsubscribing: The recipient must be able to
unsubscribe using the same means by which the message was sent.
There are specific rules and time limits for complying with
Penalties: The maximum penalty for a violation
of the legislation is $1,000,000 for an individual and $10,000,000
for a corporation or other business entity. These fines are imposed
per violation, and a violation is defined as being separate for
each day that it continues.
Vicarious liability: Violations under the Act
create both direct and vicarious liability, and directors or
officers of corporations may be personally liable for the
corporation's violations. Employers are also liable for
violations committed by their employees acting within the scope of
The law is complicated and lengthy. There have already been two
sets of regulations and interpretation bulletins published, and
more may follow. Compliance will therefore be difficult, and will
not be made any easier by the fact that consent is required to send
an email requesting consent to send further emails.
It is therefore advisable to start preparing for compliance now.
Some of the steps you can take are:
conduct an audit of your current databases
determine how and why you send commercial electronic
establish place consent mechanisms
establish data management systems to record consents and
establish unsubscribe mechanisms
draft policies to deal with commercial electronic messages
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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