Is the New Anti-Spam Act Giving you Indigestion?

Key contact: Antoine Hamel Rancourt

Canada’s new anti-spam legislation adopted in December 2010 (the “Act”) will finally take effect on July 1^st, 2014. The Act will force most businesses and organizations to revise their electronic communications and marketing processes to ensure compliance with its provisions.   

Generally, the Act prohibits the sending of emails, text messages and electronic messages on social media that contain an offer, proposal or promotion pertaining to goods or services. Unless covered by one of the exemptions (personal relationship, employment-related communication, performance of a services contract or response to a request for information) sending such a message requires obtaining the consent of the recipient beforehand. Many organizations have been actively seeking such consents before the Act comes into force. Chances are you have received such messages over the last few months. The government has adopted regulations and published guidelines that prescribe and illustrate the manner in which requests for consent must be made. The regulations provide that a request for consent cannot be part of a request to accept general terms and conditions but must specifically pertain to the sending of electronic messages that are commercial in nature.  

Businesses can however rely on consents that are deemed to be “implied” by the new legislation. The Act provides that an organization can consider that it has the implied consent of any addressee with whom it has had a business relationship during the two years preceding the sending of the message. 

Among the other obligations that will soon be incumbent on Canadian organizations is the requirement to adequately identify the sender of the message and to include an unsubscribe mechanism in each message covered by the legislation. 

This is thus a major change in marketing practices that is being forced on Canadian organizations that use electronic communications networks for marketing purposes. The legitimate goal of the legislation is to eradicate a scourge whose most annoying manifestations generally come from Eastern Europe, South-East Asia, China and Africa and pertain to goods and services whose legitimacy is often far from evident.

It should be noted that the legislation provides for fines of up to $10 million for entities that fail to comply with the new rules. The key question is whether the Canadian Radio-television and Telecommunications Commission (CRTC) will be able to deal with all of the complaints filed after July 1^st. That remains to be seen. In any event, we strongly advise our clients to make the necessary changes to their various modes of electronic communications.