Canada's new federal anti-spam law comes into force in a
significant way on July 1, 2014.
The prohibition against spam is a very broad one, and the key
focus immediately turns to the exceptions where either the law does
not apply to the message, or, consent is not required to send the
Section 6 of the law contains the basic prohibition against
sending "commercial electronic messages" without firstly,
consent, and secondly, compliance with certain form and content
requirements (including the unsubscribe mechanism).
Commercial electronic messages are defined broadly to capture
emails or other electronic messages that have as one of their
purposes "encouraging participation in a commercial
activity", and "commercial activity" is also broadly
defined to include any act or conduct of a commercial nature.
But for many businesses, there will be exceptions and a
transition period which will be helpful, so that it may not be
difficult to continue to deal with your customers.
The first exceptions for consideration under the Act include
those which entirely exclude the application of the Act to
the message – so that neither consent, nor compliance with
the form and content requirements (such as the unsubscribe
mechanism) are required. There are some fairly obvious ones
in this list (though look at the fine print closely) for family or
personal communications, responses to commercial inquiries,
internal business communications, legal communications and other
fairly obvious examples, but the big exceptions of note for many
Business to business communications, i.e. commercial electronic
messages sent between different organizations (or their employees,
representatives, or consultants) provided the organizations have a
relationship, and the messages concern the activities of the
recipient organization. The term "relationship" is
not defined and will hopefully be interpreted quite broadly.
Messages sent by charities, when the message has the primary
purpose of raising funds for the charity, and the charity is a
registered charity in accordance with Canada's Income
Tax Act. (There is a similar exception as well for political
If one of the above exceptions does not apply, then there may
still be a second group of helpful exceptions which exclude the
requirement for express consent. Some such exceptions state that
neither express or implied consent is required, and while others
state where consent is deemed to be implied. (Always remember
that implied consent may be explicitly revoked by a recipient.)
Neither express or implied consent is required in many obvious
cases involving situations such as providing a quote or estimate as
requested by the recipient, facilitating a commercial transaction,
providing warranty or recall information, dealing with ongoing
subscriptions, or employment and benefit plans.
Consent is also implied in certain key situations including:
relationship: Consent is implied if there has been a
purchase or lease of products or services or a contract between the
parties in the last two years, or if the recipient has made an
inquiry or application to the sender in respect of their business
in the last six months. This critical exception which will
require many businesses which deal with customers and the general
public (rather than pure business customers) to track their last
dealings with customers.
address: Consent is also implied where the recipient
has disclosed their address to the sender, has not indicated they
do not wish to receive commercial messages, and the message is
relevant to the recipient's business or official
capacity. This exception will be helpful to many businesses,
such as professional services businesses, which deal with a wide
array of businesses or organizations.
For the first three years under the law (until June 30,
2017), there will be implied consent to send commercial messages to
recipients where, as of July 1, 2014, there was an existing
business or non-business relationship, regardless of when that
relationship may have last been active (i.e. without reference to
the two year or six month time periods referred to above), provided
the recipient does not withdraw consent, and also provided that the
relationship had included the exchange of commercial electronic
messages such as emails.
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