From 1st July 2014 Canada is introducing one of the toughest anti-spam regimes in the world. And this will impact upon marketers around the world looking to sell their products and services into Canada. E RADAR's Will Roebuck discusses.
Canada has become one of the last of the developed nations to enact anti-spam law to help "promote the efficiency and adaptability of its economy." So, if you regularly send out marketing emails which include Canadian recipients you'll need to know exactly what the new legislation does!
Referred to as Canada's Anti-Spam Legislation (CASL) the new law is one of the toughest yet in dealing with those unsolicited emails from businesses you've either never heard of, or don’t remember subscribing to for their newsletters. The US CAN SPAM Act and UK's Electronic Privacy Regulations are mere legislative pussy cats in comparison to the roaring CASL.
What does CASL do?
The new law will affect any individual, business and organization which makes use of commercial electronic messages,is involved with the alteration of transmission data, or produces or installs computer programmes.
When in force, CASL will prohibit the
- sending of commercial electronic messages without the recipient's permission. This includes messages to email addresses and social networking accounts, as well as text messages sent to a mobile phone;
- alteration of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
- installation of computer programs without the express consent of the owner of the computer system or its agent, such as an authorized employee;
- use of false or misleading representations online in the promotion of products or services;
- collection of personal information through accessing a computer system in violation of federal law (e.g. the Criminal Code of Canada); and
- collection of electronic addresses by the use of computer programs or the use of such addresses, without permission (address harvesting).
Three government agencies are responsible for CASL enforcement:
- The Canadian Radio-television and Telecommunications Commission (CRTC) to issue administrative monetary penalties for violations of the new anti-spam law.
- The Canadian Competition Bureau to seek administrative monetary penalties or criminal sanctions under the Competition Act.
- The Office of the Privacy Commissioner of Canada to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.
CASL also allows all three enforcement agencies to share information with the government of a foreign state if the information is relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state that is substantially similar to the conduct prohibited by this Canadian law.
The Canadian authorities are introducing a three-year transitional period that starts when the legislation enters into force. During this time consent to send commercial electronic messages is implied in the case of pre-existing business and non-business relationships. Similarly, consent is implied for the same period for the installation of updates and or upgrades to computer programs. This period will end if the recipient of the commercial electronic messages says that they don't want to receive any more commercial messages or if the person on whose system the update or upgrade have been installed withdraw their consent to such installations
CASL will also allow individuals and organizations who are affected by an act or omission that is in contravention of the law to bring a private right of action in court against individuals and organizations whom they allege have violated the law. Once into force, the private right of action will allow an applicant to seek actual and statutory damages. Statutory damages may not be pursued if the person or organization against whom the contravention is alleged has entered into an undertaking or has been served with a Notice of Violation.
Before filing a lawsuit against an individual or organization, get legal advice. An individual or organization could be responsible for paying considerable legal fees incurred by the alleged violator if they file an improper claim or one that is not considered to have merit.