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Mar

24

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).

Canada’s Anti-Spam Laws are found in the proposed Bill S-235, An Act concerning unsolicited commercial electronic messages. That’s right: I said “proposed”. It’s not passed into law yet. In fact, at the time of writing this blog, the Bill had only been introduced into the Senate (first reading) on May 7, 2008 and had been debated at 2nd reading on May 13, 2008. You can view the status of the Bill here. So where does that leave us? Well, 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.

So how would Canada’s proposed Anti-Spam Laws work? The following information is a brief summary of certain provisions based on the current reading of the text of the Bill (remember: it may get changed if and when 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.)

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.

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