Any individual, business or organization that uses email, text messages or social networks to promote their products and services should take note of Canada’s Anti-Spam Legislation and its accompanying regulations. Effective July 1, 2014, the new law will regulate electronic interaction and communication between businesses and their customers – existing or potential.

SPAM – COMMERCIAL ELECTRONIC MESSAGES

The law creates a broad prohibition on sending, causing or permitting to be sent any type of commercial electronic message (CEM) without the express or implied consent of the recipient. CEMs must also identify the sender and their contact information as well as include an unsubscribe function. Any electronic message sent for the purpose of encouraging participation in a commercial activity, regardless of whether there is an expectation of profit, may be subject to the law’s requirements.

The law’s consent requirements create a regime where potential recipients must “opt-in” before receiving a CEM. A request for express consent must:

• State the purpose(s) for which consent is being sought.
• Provide the name of the person seeking consent, the name of any person on whose behalf consent is sought, the name by which either carries on business and a statement indicating which person is seeking consent and which person on whose behalf consent is sought.
• Include the mailing address and either the phone number or email/web address of the person seeking consent or the person on whose behalf consent is sought.
• State that consent can be withdrawn.
• Not be bundled with other terms and conditions.

A request for consent may be obtained orally or in paper form. After July 1^st, consent cannot be obtained by email or other electronic form unless the request (itself a CEM) falls under an exception from the consent requirement.

THE EXCEPTIONS

Importantly, there are exceptions to the requirements of the law.

Exceptions Where the Law Does Not Apply
There are some CEMs to which the law does not apply, meaning there are no consent, contact information or unsubscribe function requirements. This includes:

• Business to Business communications: provided the organizations have a relationship and the CEM concerns the activities of the organization receiving the message.
• Charities: provided the CEM is sent by a registered charity for the primary purpose of raising funds.

In addition, the law does not apply to:

• Family or Personal communications.
• Commercial Inquiry communications.
• Internal Business communications.
• Prompted communications.
• Electronic Messaging services/Social Network communications.
• Secure Account communications.
• Foreign Destination communications.
• Political Solicitation communications.

See our Guide referenced at the end of this update for more detail on the particulars of these exceptions.

Consent Exceptions
Express consent from the recipient is not required to send a CEM:

• In an existing business relationship: if within the last two years there has been a purchase of products or services or the acceptance of a business or investment opportunity, or within the last six months there has been an inquiry from the recipient to the sender.
• In an existing non-business relationship: if within the last two years there has been a donation of time or money to a registered charity, political party, organization or candidate, or, membership in a club, association or volunteer organization.
• If the recipient has conspicuously published their email address or disclosed their address to the sender, has not indicated they do not wish to receive unsolicited CEMs and the message is relevant to the recipient’s business or official capacity.

In these situations, consent is implied. However, implied consent does not relieve the sender of the contact information and unsubscribe function requirements. Further, a recipient may revoke their implied consent at any time.

Other Exceptions for Consent
There are other exceptions where neither express nor implied consent is required to send a CEM. These include messages to:

• Provide a quote or estimate as requested by the recipient.
• Facilitate, complete, or confirm a commercial transaction between the sender and recipient that the recipient previously agreed to enter into with the sender.
• Provide warranty/safety/recall/security information about a product or services used or purchased by the recipient.
• Provide notification of factual information about an ongoing subscription, membership, account, loan or similar relationship or goods or services offered thereunder.
• Provide information directly related to a current employment relationship or benefit plan.
• Deliver a product, good or service, including updates and upgrades further to an existing relationship.
• Third Party Referrals: a CEM may be sent without consent based on a referral by a third party, provided that the third party has a relationship with both the sender and recipient.

WHAT THIS MEANS FOR YOU AND YOUR BUSINESS

There is no phase-in period; all commercial electronic messages must comply with the new law beginning July 1, 2014. However, there is a three-year grace period where consent to receive a message will be implied if at any time in the past there has been an existing business or non-business relationship. Penalties for contravention of the law range from up to $1 million for individuals to $10 million for businesses, corporations and organizations.

To learn more about Canada’s Anti-Spam Legislation and its requirements, see our Guide to CASL.

The foregoing is intended for general information only and is not intended as legal advice. If you have any questions, visit our IP/IT Entertainment Group. For more on our firm see www.stewartmckelvey.com.