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Aug

14

Canada Anti Spam Laws: Present Status…

Michael CarabashPlease note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to complying with anti-spam or privacy legislation, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms).

So Canada’s old proposed Anti-Spam laws (found in Bill S-235, An Act concerning unsolicited commercial electronic messages) did not go anywhere. But that’s not the end of that. This year, the Senate is developing a bill – namely, Bill S-220 An Act respecting commercial electronic messages – that may ultimately become Canada’s anti-spam legislation. This will be the third time that the government has tried to address the issue of spam – first through Bill S-235, then through Bill s-202 An Act respecting commercial electronic messages (neither of which went anywhere)

At the present time, Bill S-220 has had 2 readings in the Senate and committee meetings (Transport and Communications committee) have taken place. Next, a report will be presented and debated on before the Senate has a chance to read the Bill again.

So in a nutshell, here’s what Bill S-220 proposes to do (if it becomes law):

Requirements for commercial electronic messages (e.g. an advertisement e-mail):

  • They must clearly and accurately identify the sender, contain readily-accessible and accurate heading and routing info, and include info as to how the recipient can contact the person sending the message.
  • They must include an accurate subject line.
  • They must include a functional unsubscribe facility and a clear statement to the effect that unsubscribing can be done.

Prohibitions in the Bill:

  • No person can send a commercial electronic message unless the recipient has consented to receiving the message.
  • Implied consent cannot be inferred from the fact that the recipient’s e-mail address has been published elsewhere or has been generally available to the public.
  • A recipient can withdraw their consent.
  • It is illegal for someone to offer to supply, supply or use e-mail or address-harvesting software or a harvested-address list.
  • No person shall impersonate a trusted source.
  • No person shall send out commercial electronic messages that include or constitute false representations (e.g. false representations that the commercial electronic message is being sent by or on behalf of another person, etc.)

Interestingly, there is a duty on every person who knows or ought to know that their business will be advertised or promoted in a commercial way contrary to the Act and who receives or is expected to receive an economic benefit to take reasonable measures to prevent the sending of the message and report any contravention to authorities.

With respect to enforcing these and other provisions of the Bill, anyone who sends a commercial electronic message without the recipient’s consent may be convicted of an offence and liable to a find not exceeding $500,000 and for a second and subsequent offence, to a find not exceeding $1.5-million.

There are other specific offences and fines related to requirements, duties, and obligations found in Canada’s proposed Anti-Spam laws. Interestingly, apart from being prosecuted under this proposed bill and having to pay a fine, an individual or business could be sued in a civil action for breaching the proposed Act.

Notwithstanding that this Bill has not yet attained the status of law, at the present time, private individuals and companies still need to comply with the Personal Information Protection and Electronic Documents Act (PIPEDA for short), which imposes obligations and liabilities with respect to the collection, use, and dissemination of third party personal information without those parties’ knowledge or consent.

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