Business Beware – Canada’s New Anti-Spam Legislation

Leanne Standryk’s article on the new Anti-Spam Legislation was featured in the June 2014 issue of Business Link.

The featured article is available by downloading the June Business Link e-edition, the article featured in Business Link is also below.

By Leanne Standryk

Before you take a break to celebrate Canada Day this year, make sure your business is ready for Canada’s new anti-spam legislation. Effective July 1st, Canada will have what is arguably one of the strictest anti-spam regimes in the world. While your business may not engage in the type of mass communication typically considered “spam,” it is likely that some of your current practices will be caught by the provisions of the new law.

The operative provision of the Act prohibits the sending of Commercial Electronic Messages (“CEMs”) to an electronic address unless the person to whom the message is being sent has consented to receiving it, and the message complies with the form and content requirements set out in the Act. Put simply, under the new regime businesses are prohibited from sending CEMs unless their practices are brought within the Act’s provisions. Failure to comply could lead to fines of up to one million dollars for individuals and ten million dollars for corporations.

HERE’S WHAT YOU NEED TO KNOW:

What is a Commercial Electronic Message (or “CEM”)? 

The type of message prohibited under the Act is broadly defined. A CEM is any electronic message (e.g. email, text message or social media message) that is sent in order to encourage participation in a commercial activity. Commercial activity includes a number of things related to a business and does not require the message to be sent with an expectation of profit.

How do businesses and organizations obtain consent?

The Act requires any person or entity who engages in the sending of a CEM to obtain the consent of the recipient. In most cases express consent is required which requires the recipient to take an active step to indicate his or her consent. They need to check a box or otherwise indicate that they agree to receive CEMs. Any request for express consent needs to be set out clearly, simply and separately from other agreements. Organizations should avoid obtaining consent as part of an agreement to general terms and conditions.

Implied consent is only acceptable in limited circumstances. If the recipient has conspicuously published their address, or given their address to the sender and the CEM is relevant to that person’s business then consent will likely be implied. Implied consent will also be found where the sender and recipient have an existing relationship and have transacted in the preceding two years.

What are the Form and Content Requirements?

This aspect of the legislation is two-fold. An organization may send CEMs to recipients who have given their consent only if the messages properly identify the sender and provide an “unsubscribe” mechanism. The recipient needs to be informed as to who is sending the CEM and how they can get in touch. The unsubscribe mechanism must be included in each and every CEM sent and must be given effect to within ten business days.

How can businesses ensure compliance?

Senders of CEMs have only 36 months to ensure proper compliance protocols are implemented. During the transitional period, consent will be implied until the recipient indicates that they no longer consent to receiving messages, provided a business or non-business relationship has been established prior to the Act coming into force.

Given this relatively short time frame it is imperative that organizations act swiftly to assess current practices and identify which ones will be affected. Senders must immediately start seeking consents, as requests for consent will fall within the prohibition after July 1, 2014, subject however to implied consents until June 30, 2017 as noted above. Finally, programs must be developed to track consents and give effect to unsubscribe mechanisms.

What about exemptions?

The Act is not completely unforgiving and does exempt specific types of electronic communication from its scope such as responses to requests for quotes and personal communications. A complete list of exemptions can be found at the link below, along with a more detailed summary of the new rules under the legislation.

For the full overview of the Act, go online to www.businesslinkniagara.com.

If your business or organization requires further assistance in understanding the new rules and developing policies and procedures to ensure compliance, please contact our office. Lancaster, Brooks & Welch LLP is located at 80 King Street in St. Catharines. For more information, please call 905.641.1551, email lstradryk@lbwlawyers.com or visit www.lbwlawyers.com. Leanne Standryk is an experienced lawyer with expertise in privacy law who can assist your business or organization in dealing with the effects of Canada’s new Anti-Spam Legislation.

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