Canada’s new federal anti-spam law comes into force in a significant way on July 1, 2014. The prohibition against spam is a very broad one, and the key focus immediately turns to the exceptions where either the law does not apply to the message, or, consent is not required to send the message. Section 6 of the law contains the basic prohibition against sending “commercial electronic messages” without firstly, consent, and secondly, compliance with certain form and content requirements (including the unsubscribe mechanism). Commercial electronic messages are defined broadly to capture emails or other electronic messages that have as one of their purposes “encouraging participation in a commercial activity”, and “commercial activity” is also broadly defined to include any act or conduct of a commercial nature. But for many businesses, there will be exceptions and a transition period which will be helpful, so that it may not be difficult to continue to deal with your customers. The first exceptions for consideration under the Act include those which entirely exclude the application of the Act to the message – so that neither consent, nor compliance with the form and content requirements (such as the unsubscribe mechanism) are required. There are some fairly obvious ones in this list (though look at the fine print closely) for family or personal communications, responses to commercial inquiries, internal business communications, legal communications and other fairly obvious examples, but the big exceptions of note for many businesses include:
- Business to business communications, i.e. commercial electronic messages sent between different organizations (or their employees, representatives, or consultants) provided the organizations have a relationship, and the messages concern the activities of the recipient organization. The term “relationship” is not defined and will hopefully be interpreted quite broadly.
- Messages sent by charities, when the message has the primary purpose of raising funds for the charity, and the charity is a registered charity in accordance with Canada’s Income Tax Act. (There is a similar exception as well for political fundraising).
If one of the above exceptions does not apply, then there may still be a second group of helpful exceptions which exclude the requirement for express consent. Some such exceptions state that neither express or implied consent is required, and while others state where consent is deemed to be implied. (Always remember that implied consent may be explicitly revoked by a recipient.) Neither express or implied consent is required in many obvious cases involving situations such as providing a quote or estimate as requested by the recipient, facilitating a commercial transaction, providing warranty or recall information, dealing with ongoing subscriptions, or employment and benefit plans. Consent is also implied in certain key situations including:
- Existing business relationship: Consent is implied if there has been a purchase or lease of products or services or a contract between the parties in the last two years, or if the recipient has made an inquiry or application to the sender in respect of their business in the last six months. This critical exception which will require many businesses which deal with customers and the general public (rather than pure business customers) to track their last dealings with customers.
- Disclosure of address: Consent is also implied where the recipient has disclosed their address to the sender, has not indicated they do not wish to receive commercial messages, and the message is relevant to the recipient’s business or official capacity. This exception will be helpful to many businesses, such as professional services businesses, which deal with a wide array of businesses or organizations.
- Grace period: For the first three years under the law (until June 30, 2017), there will be implied consent to send commercial messages to recipients where, as of July 1, 2014, there was an existing business or non-business relationship, regardless of when that relationship may have last been active (i.e. without reference to the two year or six month time periods referred to above), provided the recipient does not withdraw consent, and also provided that the relationship had included the exchange of commercial electronic messages such as emails.