While Canada remains one of the last developed countries to implement anti-spam legislation, it has responded with some of the toughest anti-spam legislation in the world. The new law is designed to protect Canadians from receiving commercial electronic messages unless the recipient has specifically “opted-in” and consented to such messages, and certain required elements (such as an unsubscribe mechanism) are included in each message.
While the legislation was passed in December 2010, a specific date for the anti-spam legislation’s coming into force has not yet been set. However, many commentators are predicting that the legislation and its regulations will likely come into force before the end of this year.
The anti-spam legislation goes against the trend in other countries which have adopted an “opt-out” approach. This means that recipients must agree to have a message sent to them prior to it being sent, as opposed to having to unsubscribe to opt-out of receiving further messages. This system creates a perplexing problem for message senders as they will require advance consent in order to send messages.
Penalties under the Canadian anti-spam legislation are severe in the event of non-compliance. The penalties range from up to $1,000,000 for individuals, and up to $10,000,000 for businesses and organizations. Moreover, directors or officers may be found to be personally liable for violations, and there is also a separate right for affected individuals to bring a statutory claim for compensatory damages arising from the violation.
For most businesses, existing consents will not be sufficient under the new rules and fresh consents will need to be sought from recipients. In addition, there will be no phase-in period for compliance to allow business and organizations time to implement the requirements of the legislation. Instead, the government is urging businesses and organizations to act now and begin reviewing their activities to prepare for compliance.
The detailed working Regulations under this new legislation have not yet been published (at the time of writing) in their final form. It is likely that some period of time will be allowed following publication of the Regulations and the coming into force of the legislation, to enable preparations to be made for compliance.
There will also be an initial 3-year transitional period during which consent to send commercial electronic messages will be implied, where there is a pre-existing relationship with the recipient.