Are you sometimes frustrated by the number of unsolicited commercial e-mails that land in your inbox?
Conversely, do you manage email lists to promote your products, services and events, without worrying about whether all your recipients agree to receive your messages?
Be aware that Canada's Anti-Spam Legisltation is of direct concern to you. The purpose of this legislation is "to protect Canadians and Canadian businesses by creating a regulatory framework to combat spam and other electronic threats."
Since July 1, 2014, the law prohibits sending a commercial electronic message ("CEM") to an e-mail address unless the person to whom the message is sent has consented to receive it and the message respects the requirements relating to its form and content.
In its broad sense, a CEM is an electronic message (eg, e-mail, text message or social media message) that is intended (in whole or in part) to encourage participation in an activity whether or not the person performing it does so for the purpose of making a profit. This applies equally to NPOs (cultural organizations, associations, etc.) and commercial enterprises.
However, there are some exceptions to the consent required for sending messages, including:
- CEMs sent between individuals with a personal or family relationship;
- CEMs sent in response to a request, such as a request for information, or as a result of a complaint;
- CEMs sent within a company or between linked enterprises, if the message relates to the activities of the recipient;
- CEMs sent in fundraising campaigns organized by charities or political parties.
How is consent defined?
Consent is defined according to two concepts:
Express consent: This is consent obtained by a person who subscribes to a mailing list or who clearly indicates that he or she wishes to receive CEMs with knowledge of the purposes for which consent was sought. In addition, the sender must be able to prove that such consent was obtained in the event of a complaint. Any consent obtained "by default" (pre-checked box, failure to respond to a request for consent or renewal of consent, inclusion of consent in the terms of service of a sale) is invalid by law.
Implied Consent: Consent is assumed to be tacit consent to receive CEMs where the recipient and the originator have "business relationships in progress", corresponding to one of the following categories:
- A purchase, lease or contract has been concluded between the consignee and the consignor within the last 24 months.
- A request for information or submission has been made by the recipient within the last 6 months.
- The recipient and the sender have a private relationship in progress.
- The sender has been given his business card by the recipient.
- The recipient's email address is displayed publicly and without mentioning that its holder does not want to receive a MEC.
How to prove consent?
Commercial e-mail senders should consider retaining a paper or electronic version of the following documents:
- all evidence of explicit or implied consent (eg, audio recordings, signed consent forms, completed electronic forms) given by consumers in connection with the receipt of CEM;
- document specifying the methods of obtaining consent;
- policies and procedures relating to compliance with the Canada's Anti-Spam Legislation;
- all unsubscribe requests and resulting actions.
Requirements for the form and content of CEM
All of the CEMs you send must meet the following requirements:
- You identify yourself clearly.
- The message includes your contact information or the name of the company on whose behalf you send it.
- The message includes a link to allow the recipient to unsubscribe easily and at no cost to him / her.
In conclusion
As you can see, this legislation is serious and well marked. The penalties provided for can be fairly substantial. Its application is managed jointly by the CRTC, the Competition Bureau of Canada and the Office of the Privacy Commissioner of Canada. The Spam Notification Center is responsible for gathering the information necessary for the application of the law.
Details on the application of the law are available at: http://www.fightspam.gc.ca