Canada's new anti-spam legislation adopted in December 2010
(the "Act") will finally take effect on July
1st, 2014. The Act will force most businesses and
organizations to revise their electronic communications and
marketing processes to ensure compliance with its provisions.
Generally, the Act prohibits the sending of emails, text
messages and electronic messages on social media that contain an
offer, proposal or promotion pertaining to goods or services.
Unless covered by one of the exemptions (personal relationship,
employment-related communication, performance of a services
contract or response to a request for information) sending such a
message requires obtaining the consent of the recipient beforehand.
Many organizations have been actively seeking such consents before
the Act comes into force. Chances are you have received such
messages over the last few months. The government has adopted
regulations and published guidelines that prescribe and illustrate
the manner in which requests for consent must be made. The
regulations provide that a request for consent cannot be part of a
request to accept general terms and conditions but must
specifically pertain to the sending of electronic messages that are
commercial in nature.
Businesses can however rely on consents that are deemed to be
"implied" by the new legislation. The Act provides that
an organization can consider that it has the implied consent of any
addressee with whom it has had a business relationship during the
two years preceding the sending of the message.
Among the other obligations that will soon be incumbent on
Canadian organizations is the requirement to adequately identify
the sender of the message and to include an unsubscribe mechanism
in each message covered by the legislation.
This is thus a major change in marketing practices that is being
forced on Canadian organizations that use electronic communications
networks for marketing purposes. The legitimate goal of the
legislation is to eradicate a scourge whose most annoying
manifestations generally come from Eastern Europe, South-East Asia,
China and Africa and pertain to goods and services whose legitimacy
is often far from evident.
It should be noted that the legislation provides for fines of up
to $10 million for entities that fail to comply with the new rules.
The key question is whether the Canadian Radio-television and
Telecommunications Commission (CRTC) will be able to deal with all
of the complaints filed after July 1st. That remains to
be seen. In any event, we strongly advise our clients to make the
necessary changes to their various modes of electronic
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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