New Anti-Spam Law: The need for a prior consent when sending a commercial electronic message

(Updated on May 2, 2013)

OF PROFESSIONAL PRACTICES

A new legislation will soon require a change in the way you solicit your clients electronically.

On December 15, 2010, the government of Canada adopted a new law commonly known as “Anti-Spam Law".

The important applicable provisions of the federal law, which should come into force in 2013, will regulate unsolicited electronic messages (i.e. spam) on Internet and wireless networks, particularly emails, text messages by cell phone, and communications via social networks.

By “commercial electronic message”, we mean a message that aims or not at making profit, especially a message containing offers relating to the purchase, sale or leasing of a product, property, service or land, business or investment opportunities as well as promotions of things or persons.

From the entry into force of the Anti-Spam Law, it will be prohibited in principle to send commercial electronic messages without obtaining the recipient’s prior consent. In this regard, the Anti-Spam Law provides that there can be a prior consent which is expressed or presumed.

Expressed consent

When it is difficult to presume that there is a consent according to the rules listed below, it is necessary to obtain a prior consent from the recipient to receive electronic messages.

The solicitation procedure of a prior consent must comply with the requirements of the Anti-Spam Law i.e. by clearly and simply stating in the transmitted message the following information:

• The purpose for which the consent is being sought;
• The information allowing identification of the person who is requesting consent or the person on whose behalf consent is sought;
• Any other information prescribed by a regulation.

Presumed consent

In the absence of a prior expressed consent to receive a commercial electronic message, some situations will allow the sender to presume the consent of the recipient.

This includes the case where the recipient of the message has given the sender or has conspicuously published his electronic address without stating that he does not wish to receive any unsolicited commercial electronic message to this address. Moreover, the message received must be related to his business or his functions within such business. For example, an email address published on Internet constitutes a presumed consent. More specifically, a seller who had published on Internet an advertisement to sell his property can be considered to have agreed to be solicited by you or your real estate agency.

Furthermore, an existing business relationship between the sender and the recipient may allow concluding that the recipient has implicitly given his consent to receive commercial electronic messages for the next two years. For example, this can happen in the case where you provide a person with your business card in a context that allows you to reasonably believe that he agrees to receive electronic messages from you.

Consent not required

The anti-spam law provides some exceptions to the requirement for obtaining the recipient’s prior consent. It concerns the electronic message giving a price or an estimate for products, services, land, interest or right in land, at the request of the recipient.

Also, a confirmation message of a commercial transaction that the recipient has previously agreed to conclude with the sender does not require a prior consent.

Finally, no consent is required for sending a message that provides factual information to the recipient regarding a subscription, a membership, an account, a loan or any other similar transaction.

List of electronic addresses

Once the prior consent is obtained, the Anti-Spam Law does not prohibit the compilation and legitimate collection of distribution lists insofar as the rules regarding the consent and the applicable legislation concerning protection of personal information are complied with. The thing that the Anti-Spam Law prohibits is rather the establishment of unauthorized lists of electronic addresses.

Mandatory content of commercial electronic message

When sending a commercial electronic message to a recipient who has previously given his consent or from a collected distribution list, the Anti-Spam Law provides some requirements regarding the mandatory content of the transmitted electronic message. It is important that this message contains information allowing the identification of the sender and ensuring easy communication with him. In addition, the law requires that a description of consent withdrawal mechanism should be provided via an electronic address or a website for example.

Sanctions

Besides the possibility of being subject to a civil action in case of loss, suffered damage or expenses incurred by the person affected by a violation of the obligations and prohibitions relating to the transmission of spam, the sender is also liable to an administrative penalty of which the maximum penalty is $1,000,000 for an individual and $10,000,000 for a company.

In case of violation of the Anti-Spam Law by a legal person, directors, officers or agents who directed or authorized, or who have assented to, acquiesced or participated in this violation are also responsible. The same thing applies to the employer who is responsible for the violation committed by his employee within the scope of his employment.

Voluntary disclosure of a contravention of the law

Given the importance of penalties, it is important to know that a disclosure procedure is also provided. The sender who has violated the Anti-Spam Law can conclude with the Canadian Radio-television and Telecommunications Commission (CRTC) a commitment including conditions or a fixed penalty set by the organization.

Summary

Currently, it is still possible to solicit your clients by electronic messages without obtaining their prior consent to receive your commercial electronic messages. However, after the entry into force of the applicable provisions of the Anti-Spam Law, a prior consent will be necessary to send your commercial messages which may, for example, include your newsletters, promotions, ads or any other commercial electronic communications.

In the absence of a situation that allows presuming a consent or failure to obtain an expressed consent, the Anti-Spam Law prohibits the solicitation of a prior consent by sending an electronic message, under penalty of sanctions. Therefore, it is important, if you wish to obtain a prior consent of the recipient by sending an electronic message, to do so before the entry into force of the law. In such a case, it is suggested to do so by following the procedure for obtaining an expressed consent set forth in the Anti-Spam Law explained above.

For more information on the conditions that apply to the presumed consent or for more details on electronic messages that do not require a prior consent, please refer to the Anti-Spam Law and its regulations.

Resources

Industry Canada

Industry Canada Web Service Center
Industry Canada
C.D.-Howe Building
235 Queen Street
Ottawa (Ontario), Canada K1A 0H5
Email: info@ic.gc.ca
Telephone: 613-954-5031
Toll-free: 1-800-328-6189
Internet: http://combattrelepourriel.gc.ca   

Draft regulation on electronic commerce protection under the Anti-Spam Law published for consultation from January 5 to February 4, 2013. The regulation will come into force at the same time as the law, upon its final approval by the Governor in Council.

Canadian Radio-television and Telecommunications Commission

Canadian Radio-television and Telecommunications Commission
Ottawa (Ontario), Canada, K1A 0N2
Toll-free: 1-877-249-2782
Internet: http://www.crtc.gc.ca

Regulations no. 2012-183 was published on the CRTC website as well as the following guidelines:

• Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC)
• Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation