Anti-Spam Legislation Update

October 16th, 2012 by

Further to my earlier blog post on Canada’s Anti-Spam Legislation (A fine line between marketing and spam) it is expected that the Act will come into force later this year, or early 2013. Two sets of related regulations have been issued, one by the CRTC and one by Industry Canada. While the Industry Canada Regulations have not yet been finalized, final regulations were published by the CRTC in March , which include a number of revisions responding to some of the concerns raised by the public in the original draft of the proposed Regulations. The revisions allow for some more flexibility while at the same time providing some clarification on key issues such as what contact information needs to be included in a request for consent, the form consent may take and less restrictive and technology-neutral means of communication.

The final CRTC Regulations include the following changes from those originally proposed:

  • Flexibility with respect to the type of contact information that must be provided. Senders of commercial electronic messages (“CEMs“), may now provide either a telephone number, an email address or a web address. The original proposal seemed to require the provision of all three, as well as a physical mailing address.
  • The language has been revised to state that if required information is to be accessible from the “world wide web”, it must be “readily accessible” and that the required unsubscribe mechanism must “be able to be readily performed”. The original proposed Regulations specified these requirements with reference to a maximum number of “clicks”.
  • The revised Regulations now indicate that consent for the receipt of a CEM may be obtained orally, as well as in writing, as the original proposed regulations provided. In a subsequent Regulatory Policy issued by the CRTC, the Commission further indicates that consent obtained “in writing” includes electronic forms of consent.

The above noted changes provide some certainty to businesses trying to comply with the legislation and also make compliance somewhat less onerous.

The related Industry Canada Regulations are expected to been finalized shortly. One of the primary objections to the draft Industry Canada Regulations has been the definition of a “personal relationship”, in the context of one of the exceptions to the consent and form requirement for a CEM. “Personal relationship”, is defined in the draft Regulations to require that the sender of a CEM and the receiver of a CEM have had an “in-person meeting”, and a “two-way communication” within the previous two years. On its face, this exception currently precludes meetings through, for example, online or social media forums.

Look for an update in this space when the Industry Canada Regulations are finalized. The most significant recommendation we can offer legitimate commercial entities doing business in Canada at this time is to not ignore Bill C-28, as doing so could subject you to severe penalties.

If you have any questions regarding compliance with anti-spam legislation, please do not hesitate to contact the Intellectual Property or Business and Corporate Services department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

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