It is going to get a lot tougher for Canadian companies,
securities registrants and others to electronically communicate and
market to clients since Canada has recently enacted anti-spam
Below is a top 10 things you need to know list about the new law
Bernice Karn, my Partner at Cassels Brock and Blackwell
#1.Effective in 2014 - We
have a new law in Canada regulating spam and spyware that will come
into force in Q1 2014.
#2.Different than the U.S. Anti-Spam
Law - It is not like the US "Can-Spam" statute.
Ours is based on an "opt-in" consent regime.
#3.Exceptions - There are
exceptions, however, such as the "personal or family
relationship" exception and responding to requests for
information or providing follow-up information in existing
#4.Implied Consent –
Consent can be implied in some cases such as where there is an
"existing business relationship"/where there is an
"existing non-business relationship". These messages are
generally subject to a 2 year rule – this
means there must have been some type of transaction or personal
interaction in the 2 years prior to sending the message. Consent
can also be implied where the recipient has conspicuously published
his or her email address or provided his or her "business
card" as long as the individual has not told you they do not
want to receive these types of messages.
#5.Rules on Requesting Consent
- Requests for consent are subject to detailed rules on
what they must contain. Among the requirements is a statement that
the person can withdraw consent at any time. To obtain consent,
methods such as "preference centres" on websites are
contemplated or good old fashioned paper consent forms.
#6. Contents of Commercial Electronic Message
– The new law also prescribes detailed information
on what must be "clearly and prominently" included within
each commercial electronic messagee. This includes sender
disclosure information and a simple to use unsubscribe
#7.Prescribed Message Format
– Even with implied consent, however, certain prescribed
message format requirements must be satisfied.
#8.Serious Penalties -
Breaking this law is serious. The CRTC is empowered to enforce the
law and can levy administrative monetary penalties of up to $10
million per incident against corporations and $1 million/incident
against individuals. There is a reverse onus meaning you are
presumed guilty unless you can show otherwise through
representations that you are entitled to make to the CRTC.
#9.Private Right of Action
– The statute also creates a private right of action for
litigants to sue for a breach of the law and empowers the court to
order significant penalties (example – up to $1 million/day
for breach of consent requirement) in addition to ordering
compensation to the applicant. The private right of action comes
into effect in 2017.
#10.Liabilty for Directors and
Officers – Directors and officers of corporations
will be personally liable if they direct, authorize, assent to,
acquiesce in, or participate in an offence, whether or not the
corporation is actually prosecuted. There is also vicarious
liability for violations by employees/agents acting in scope of
authority, whether or not action is taken against the employer.
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