The sending of unsolicited commercial messages through e-mail, instant messaging accounts, cell phone text messages, and various other forms of electronic messages has become a commonly accepted method of doing business. In December 2010, Royal Assent was given to An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (the “Anti-Spam Act”). Now if that name wasn’t intimidating enough, the Anti-Spam Act imposes significant restrictions on the sending of unsolicited commercial electronic messages. Do you know what this means for your business and are you ready for it?
Unless an exception applies, the Anti-Spam Act prohibits the sending of commercial electronic messages without the prior consent of the recipient. Consent can be express or implied. How does a business go about getting consent to send unsolicited commercial electronic messages? It is not necessarily straight forward or simple. Even the manner of obtaining consent is regulated by the Anti-Spam Act. When getting consent, business must be careful to meet all of the prescribed requirements, such as disclosing the purpose for which consent is being collected.
Even once consent to send unsolicited commercial electronic messages is obtained, the Anti-Spam Act still requires that these messages meet certain requirements. Two of the requirements for commercial electronic messages are: (i) disclosure; and (ii) unsubscribing mechanisms. Commercial electronic messages must identify the person sending the message and disclose their contact information. The current regulations under consideration for the unsubscribing mechanisms require that the unsubscribe function must be able to be performed in no more than two clicks, or through some other equally efficient method.
Businesses that violate the Anti-Spam Act may be subject to substantial risks. Penalties for non-compliance could be up to $1 million per violation for an individual and $10 million per violation for other entities. In addition, the Anti-Spam Act also provides a private right of action for those who suffer from a breach of the Anti-Spam Act to claim damages, expenses and penalties.
The Anti-Spam Act has yet to be proclaimed into force, however businesses should start preparing now by reviewing their current practices and their existing e-mail lists. Businesses should verify if explicit consents have been granted, if implied consent can be found, and whether or not any exceptions apply. If a business does not currently have the consents that it requires, it should starting working to ensure these are in place before the Anti-Spam Act is proclaimed to ensure a smooth transition.
This article is intended only as a brief overview of the Anti-Spam Act and does not constitute legal advice or an opinion on any issue. For more information, please contact us.