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Spammers beware

Bill C-28 is called the Fighting Internet and Wireless Spam Act (FISA).


July 28, 2011
By Jessica Foster

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Bill C-28 is called the Fighting Internet and Wireless Spam Act (FISA). Its intended effect is to deter and prevent deceptive and damaging forms of spam and Internet practices. After long consultations with industry, organizations, legal experts and interested parties, Canada has now passed a bill that is intended to increase the reliability and trustworthiness of the digital economy for Canadians. A full copy of this bill can be viewed on Industry Canada’s website at www.ic.gc.ca.

The legislation will deal with how, when, where and why you are authorized to send commercial electronic messages. For the purposes of rental operators, this includes e-mails, text messages, instant messages, social media messages, telephone calls and voicemail messages that are intended to solicit business.

In a nutshell, under the new rules of the FISA you are now required to obtain permission (either implied or expressed) from your potential clients before you can legally send them electronic messages about your business and services. In addition, you would be well advised to maintain records so you are able to prove, if needed, that you have received this permission from them.

E-solicitation
A commercial message is a message that contains content that is intended to solicit business or commerce. FISA covers more than just the words contained in the message. It also includes commercial website page content, but only if a link to that page is included in the transmitted message.

FISA requires that you receive permission from your clients and potential clients before you communicate with them electronically about your business and services. Within the act, both “expressed” and “implied” permissions are acceptable. What is the difference between the two?

“Express” permission describes a situation in which clients, or potential clients, have formally opted-in to receive commercial messages from you. They check a box on a website registration form or mail in a point-of-purchase postcard requesting your communications. This is, by far, the strongest form of consent, as it is very clear what your clients’ intent is with respect to you marketing to them.

“Implied” permission, on the other hand, denotes consent that is not actually stated, but is inferred by another action taken by your clients. For example, when you already have an existing business relationship with customers or clients, it is implied that they expect ongoing business-related communications from you.

In addition, “implied” permission may include persons you may not even know, as long as their businesses and duties are relevant to your business and their contact information has been made publicly available to you. Residential homeowners, even though they may be your potential customers, do not fit this description, but contractors or professional landscapers in your area would. You do, however, need to ensure that businesses publishing their contact information have not also published a disclaimer along with it, stating they do not wish to receive commercial messages.

Getting permission
When you stop to think about this for a minute, you will quickly recognize it can be very easy for you to obtain permission from your customers without deviating from your regular day-to-day practices. 

You could add a checkbox to your rental agreements stating, “I agree to receive electronic communications about future offers and promotions of interest to me.” Once checked, this would be an example of clients giving you “expressed” permission for you to communicate with them about your business and services.

An example of implied consent would be when a new client visits your website and requests information from you. This action is inviting a business relationship with you and therefore is “implied” permission for you to communicate with them.

In both cases, there will be adequate documentation for you to provide proof of consent later, if you are ever required to do so.

Beyond permission
There are two more important issues with FISA compliance that may affect the way you presently communicate with your clients. First, all the commercial message e-mail and electronic newsletters you send to your clients will have to contain the full name of the sender along with valid contact information. You are likely already doing this, as it is only common sense to provide your clients with a way to get back in touch with you. That said, with FISA, it is no longer an option, but a requirement.

All of your commercial messages must provide the recipient with a working mechanism, manual or otherwise, for them to “opt-out” of receiving any further electronic correspondence from you. It will be very important that you monitor and honour these “Unsubscribe” requests to ensure FISA compliance.


The sky is not falling

FISA will probably not reduce or hinder your legitimate business practices. The core requirements of FISA are straightforward to adopt, and are not costly.

One of the results of this legislation will be an increased need to maintain relevant and legitimate contact with customers and potential customers. Business management software may be able to help you engage your customers and prospects through professional, interactive website tools and legitimate e-mail correspondence. These systems also will help you maintain your customer list and minimize the time required to legitimately correspond through mass e-mailing tools and automation – all the while maintaining FISA compliance.

While visiting your website, potential clients will gladly provide you with consent if by doing so they believe it will be beneficial to them. They will welcome the convenience of such online website tools as rental booking, newsletter subscriptions and equipment specifiers, to name a few, through which they may willingly provide you with their e-mail address and consent to receive further communications from you, all well within the rules of FISA.

The new FISA legislation will come into effect in September 2011. Now is the time to consider its implications and put appropriate business practices in place to ensure your compliance in electronic communications.


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