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In July of 2012 I wrote an entry for this blog discussing Canada's pending anti-spam legislation. On January 5, 2013 Industry Canada released a revised set of proposed regulations to the legislation, titled the Electronic Commerce Protection Regulations. There is a 30 day period for any comments to be submitted to Industry Canada.
Some of the proposed provisions are a restatement from prior drafts of the regulations, but Industry Canada has responded to previous submissions by expanding and clarifying some of the exemptions to the broadly-stated message prohibitions in the anti-spam legislation. Of particular note are the following items.
PERSONAL RELATIONSHIP
Consent will not be required to send a message if the parties have a "family relationship" or "personal relationship". The proposed regulations define both these terms, and would now expand the concept of "personal relationship" to be a subjective test involving prior voluntary, two-way communications. This may provide some relief against accidentally labelling otherwise innocent messages as "spam", but the subjective nature of the test could create some uncertainty.
REFERRALS
In response to extensive submissions, Industry Canada has introduced a "third party referral" exemption, permitting limited messages to be sent to someone who has been referred to the message sender as a result of an existing business relationship. Without this exemption, the legislation's concept of spam could be applied to the unsolicited message acting on a referral. This attempts to strike a balance between the right to be free from unsolicited messages, and the real world manner in which legitimate referrals often occur. However, some commentators have noted that this exemption may dilute the overall effectiveness of the legislation.
ONGOING "BUSINESS TO BUSINESS" ACTIVITY
The proposed regulations introduce a welcome and needed exemption for circumstances where employees, representatives, franchisees or contractors of an organization are communicating with each other about that organization's affairs, and also for communications between representatives or contractors of separate organizations where there is an ongoing business relationship between the organizations. This is intended to avoid prohibiting legitimate business and service provider dialogue, which might otherwise inadvertently fall within the classes of messages prohibited by the legislation.
LEGAL RIGHTS
New exemptions are also being introduced for messages sent in satisfaction of legal obligations or to enforce legal rights.
OTHER EXEMPTIONS
The draft regulations would create a number of other technical exemptions designed to alleviate a variety of specific concerns, such as an exemption for messages transmitted by foreign senders to foreign-resident recipients who happen at the time to be travelling in Canada, as the message would then pass through a "computer system in Canada" and would otherwise be caught by the broad terms of the legislation. However, some exemptions requested in prior submissions were not implemented – such as a clarification of the ability of product manufacturers to communicate directly with end users of their products. While other exemptions might be available to a manufacturer in any particular fact situation, there is no explicit exemption for such manufacturers.
Industry Canada has also indicated that some further clarification may yet come through "guidelines" interpreting the legislation.
WHAT'S NEXT
After receiving comments in February, 2013, Industry Canada will probably proceed to finalize the regulations in the first quarter of 2013, with a view to bringing Canada's anti-spam laws into effect soon thereafter.
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.
