Don’t be a spammer

Ralph Kroman is a business lawyer with WeirFoulds. He helps his clients deal with such intellectual property and technology matters as the acquisition of information technology, and the licensing and protection of copyright, trademarks and confidential information. He and I had the following conversation about Canada’s new anti-spam legislation.

MB: Let’s start with the basics. What is Canada’s anti-spam law?
RK: Canada passed the Fighting Internet and Wireless Spam Act, unofficially referred to as the Anti-Spam Act, in December of 2010. It has not yet entered into force but once it does, likely sometime in 2013, it will regulate certain activities to deter damaging and deceptive forms of spam and will ultimately promote the efficiency of our economy by prohibiting electronic threats to commerce.

MB: How will this new law impact Canadians and how they run their businesses?
RK: The main application of the act relates to electronic messages sent to encourage participation in a commercial activity including the purchase of goods or services by the recipient. These are referred to as “commercial electronic messages” and include messages sent through e-mail, social networking sites and text messages. Individuals and businesses are prohibited from sending these messages without the consent of the recipient, identification of the sender and corresponding contact information, and inclusion of an unsubscribe mechanism. Even if you send a single electronic message targeted to one individual person, it may be subject to the act.

MB: It seems like the key factor where most of these prohibitions are concerned is consent. Can you elaborate a bit further on this requirement?
RK: The bottom line is, we can’t send commercial electronic messages to people who haven’t allowed us to. There are two types of consent to consider: express and implied. Express consent occurs when the recipient has outwardly agreed to the receipt of the messages. Implied consent occurs when there is an existing business relationship between the sender and recipient. Implied consent usually expires two years after the most recent business transaction between the sender and recipient.

MB: What happens if someone, whether an individual or a business, is caught violating the anti-spam act?
RK: There are serious implications and penalties for violating the act. Individuals can be fined up to $1 million per violation, while entities, such as corporations, can be fined up to $10 million per violation. 

MB: How can Canadians and businesses protect themselves from these implications?
RK: Compliance is the key to protection, and awareness and preparation are needed for compliance. Review the regulations, understand them, and take the necessary steps to ensure you comply. Look at your electronic communications and determine which ones would be classified as commercial electronic messages and would be caught by the act. Then, review your database of contacts and determine where consent is required for future communications. You will also want to establish procedures for obtaining express consent, for maintaining lists of recipients who fall under implied consent, and for removing recipients when implied consent expires. Finally, make sure all communications comply with the act and include all requisite information and the unsubscribe mechanism.