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April 9, 2013

Anti-Spam Law Update: 10 million reasons not to ignore it

First presented at an Employment Law Seminar

New Anti-Spam Legislation will likely come into force by the end of 2013. Canadian businesses should become familiar with this law and the impact it will have on the conduct of their employees, who act as agents of their organization.

When the law comes into force it will prohibit:

  1. sending a "commercial electronic message" without the recipient's consent;

  2. this includes commercial email, commercial messages sent via social networking accounts, and commercial text messages

  3. installing a computer program without the express consent of the owner of the computer system or the owner’s agent;

  4. the use of misleading representations online in the promotion of products or services;

  5. collecting personal information via accessing a computer; and

  6. collecting email addresses without permission (address harvesting).

"A commercial electronic message is a message that promotes commerce or business."

What is a commercial electronic message?

A commercial electronic message is a message that promotes commerce or business. The Act defines a commercial electronic message as follows:

For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

  1. offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

  2. offers to provide a business, investment or gaming opportunity;

  3. advertises or promotes anything referred to in paragraph a or b; or

  4. promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs a to c, or who intends to do so.

The Act sets out that these messages must conform to a list of prescribed requirements including:

  1. set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent;

  2. set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and

  3. set out an unsubscribe mechanism.

"The maximum fine is $1 million per violation for individuals and $10 million per violation for other entities, such as corporations."

Enforcement and Fines

The maximum fine is $1 million per violation for individuals and $10 million per violation for other entities, such as corporations. However, the Act sets out a private right of action, meaning that a person who believes they were effected by a person or corporation who violated that Act, can obtain, depending on the circumstances, up to a maximum of $1,000,000 for each day on which the conduct occurred.

Various government bodies will be involved in the enforcement of the new legislation including the CRTC, the Competition Bureau, and the Office of the Privacy Commissioner.

What does this mean for your business?

Corporations should ensure that employees do not use corporate email lists to their own personal benefit. To do this, businesses should consider limiting who in their organization has access to corporate email lists. Corporations should assess how they collect information from their clients and make sure that the collection process complies with the new legislation.


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