In late June and early July 2011, the federal Department of Industry and the Canadian Radio-television and Telecommunications Commission (CRTC) called for comments on draft regulations for what is commonly referred to as Canada’s Anti-Spam Legislation. Comments to the CRTC are due August 29, 2011, while comments to Industry Canada are due September 9, 2011.
Department of Industry
The draft Industry Canada regulations provide definitions clarifying the exemption that allows for the sending of electronic commercial messages without consent if the sender has a personal or family relationship with the recipient of the message. Family relationship is defined as a blood relationship, marriage, common-law partnership and adoption, while personal relationship requires the parties have had an in-person meeting and, within two years, a two-way communication. This latter definition of a personal relationship will likely impact the use of “forward to a friend,” a technique favored by many e mail marketers.
The proposed regulations also spell out the conditions for using consent when consent is being obtained on behalf of another person. A person who obtained express consent on behalf of a person whose identity was unknown may authorize any person to use the consent on the condition that the person who obtained consent ensures that any commercial electronic message identifies the person who obtained consent and an “unsubscribe” mechanism is provided that allows the person to withdraw his consent from the person who obtained consent and/or any other person who is authorized to use the consent.
CRTC
The CRTC draft regulations deals with, among other things, the form and information to be included in commercial electronic messages (CEMs), which must include the name of the person sending the message or on whose behalf it is sent; physical and mailing addresses; a telephone number providing access to an agent or a voice-messaging system; an e-mail address and a web address of the person sending the message (and, if different, the person on whose behalf the message is sent and any other electronic address used by those persons), and a statement that consent may be withdrawn by using any of those contact methods. This mandate could require organizations to provide an opt-out mechanism in all its electronic contact points, including contact points such as social networking sites.
If it is not practicable to include this information in a CEM, it may be provided by a link to a web page that is clearly and prominently set out and that can be accessed by a single click or another method of equivalent efficiency at no cost to the person.
Where a computer program’s material elements perform one or more of the functions listed in subsection 10(5) of the Anti-Spam Legislation (i.e. collecting information from a computer, interfering with control of a computer system and installing a computer program activated by a third-party without the knowledge of the owner or user of the computer) such functions must be brought to the attention of the person from whom consent is being sought separately from any other information provided in a request for consent (the person seeking consent must obtain an acknowledgement in writing that the person providing consent understands and agrees that the program performs the specified functions).
It is expected that the comment period will generate significant feedback from many stakeholders and that the final regulations will likely reflect that input. Organizations should closely watch developments during the fall of 2011, as the target for implementation of the regulations is early 2012.
