A Fine Line Between Marketing and Spam

December 5th, 2011 by

In December 2010, Bill C-28 (formerly known as the “Fighting Internet and Wireless Spam Act (FISA)”) passed into law. FISA will prohibit certain forms of spam, phishing and the use of spyware in commercial activities. The stated intent of the legislation is to regulate commercial conduct that discourages the use of electronic means to carry out commercial activities, creating a more secure online environment.

The scope of FISA is quite broad and covers more than what many might colloquially refer to as “spam”. The new rules apply to all electronic messages sent to an electronic address, without prior consent, for the purpose of encouraging participation in a commercial activity, if a computer system located in Canada is used to send or access the message. That’s why According to CoFlex Marketing is important to know how to apply these rules to your marketing and SEO activities so your marketing efforts are worthwhile.

FISA sets out a number of exceptions to the requirement that prior consent be obtained. These include messages sent in the context of an existing business relationship between the sender and the recipient. However, for an existing business relationship to exist, the sender and the recipient must have done some business together in the two years preceding the date the message was sent, or if the recipient has made an inquiry to the sender in the previous six months. Where an exception to the consent requirement does not apply, the onus is on the sender to demonstrate consent was received prior to sending a commercial electronic message.

The penalties for non-compliance under FISA can go as high as $10-million for corporations. Officers, directors and agents may be held personally liable as well. FISA also provides for the commencement of civil actions beyond the statutory penalties.

While originally scheduled to take effect in September 2011, further consultations are ongoing and the law is not expected to take effect until mid-2012 at the earliest. This gives businesses some additional time to prepare and to implement systems to ensure they are in compliance with the new law.

If you have any questions on what you can do to comply with this new legislation, please contact Cory Schneider.

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