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 legislation.
Below is a top 10 things you need to know list about the new law prepared by Bernice Karn, my Partner at Cassels Brock and Blackwell LLP.
#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 commercial transactions/relationships.
#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 mechanism.
#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.
A recent e-LERT on this matter ws prepared by Bernice Karn and other lawyers at Cassels Brock called "Canada's Anti-Spam Legislation Coming in 2014: Are you Ready?" It is a good summary of Canada's new anti-spam legislation and provides links to prior e-LERTs on this topic.
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.