Most people are likely aware of Canada’s new anti-spam legislation, which came into effect across the country on July 1. What is this law about and what does it do?
First, let’s start with a basic definition. Spam is any electronic message such as an email or text message that is sent to you for a commercial purpose without your consent. Spam may be sent for legal purposes such as subscribing to a newsletter or illegal scams like the following.
“I am a Nigerian Prince looking to transfer money into Canada, and I have selected you to make a tidy profit for helping me.”
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What does this law mean for businesses and individuals? Businesses in Canada are now required to obtain the consent of all individuals to whom they send electronic communications. This consent can be express or implied.
An example of express consent would be checking off a box or signing up for an email for alerts and special deals from a company. This could include signing up for an online flyer so that you don’t miss a deal at the grocery store.
Implied consent is where a business has an existing business relationship with the individual. For example, if you call a company for a quote on services, they have your implied consent to send it to you electronically.
Implied consent is also provided for a registered charity, political party or voluntary organization. Canadian Blood Services can email to ask you to donate if you have donated before and political parties can send out newsletters where you have donated or volunteered previously.
There are also clear ways now for individuals to be removed from these lists. In typical cases, implied consent lasts for two years after a relationship starts.
This could mean that two years after you purchase a product online, that retailer may be able to send you further promotional material.
With both express and implied consent, the message that businesses send out must have a clear unsubscribe mechanism.
This could be as simple as a clear link in an email that prevents you from receiving future emails.
The businesses sending out these emails must also clearly identify themselves and their organization. If an email comes from a retailer, it has to be clear who that retailer is.
In addition, the message cannot be false or misleading. If the email advertises a promotion, it must exist.
What happens when a business violates these new rules? An individual can report it to the Government of Canada’s Spam Reporting Centre online.
Violators may be subject to hefty fines for breaking this new law: up to $1 million for individuals and $10 million for businesses.
There is also a provision, starting in 2017, where consumers can take businesses to court for sending them spam. It may be too early to tell how these laws will actually be enforced, but time will tell.
Finally, if you are a business that relies on emails to solicit clients, it is recommended you speak with a lawyer to make sure that your business complies.
Brayden Gulka-Tiechko, associate lawyer in McDougall Gauley’s Moose Jaw office, helped research and draft this article.
