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New anti-spam law tough business

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This year's Canada Day could see a different kind of fireworks. That's when Canada's Anti-Spam Legislation comes into force.

On July 1, Canada will establish the world's toughest standards for sending a commercial electronic message. The anti-spam law targets spam, those annoying messages that make it through our firewalls and clog our inboxes and try to get us to buy everything from vacations to pills that offer -- ahem -- certain physical enhancements. It also targets phishing (stealing personal information), the installation of spyware (gathering information) and malware (causing damage or disabling programs) on computer systems.

For its part, the government's website states the law "will help to protect Canadians while ensuring that businesses can continue to compete in the global marketplace."

All well and good, you're saying. It's about time there were aggressive measures to defend Canadians against the epidemic of spam, computer hacking and false online advertisements.

But in doing so, the federal government is creating a new regulatory regime for all legitimate business and individuals sending commercial electronic messages that has the potential for unintended consequences.

Here's how the law works:

A commercial electronic message is defined as having at least one purpose of encouraging participation in a commercial activity. That provides a broad scope. Soliciting business is clearly a commercial message. But conveying any information of a commercial character in an email or online could be caught. Even a newsletter could be considered a commercial electronic message if it also suggests people contact the sender for a commercial reason. And don't think you're exempted if you work for a non-profit agency. The anti-spam law states the act or conduct contemplated doesn't need an expectation of profit.

The law will cover all forms of electronic communication sent or received in Canada: emails, text messages and instant messaging as well as various aspects of social media. It will force individuals, organizations and businesses to obtain the consent of recipients before sending messages, then record and track the consents and remove people from the database if they subsequently withdraw their consent.

People who ignore the new legislation do so at their peril: The law includes penalties of up to $1 million for individuals and $10 million per organization per violation. Officers and directors of an organization could also face charges.

The government has already hired more than 30 people to audit computer systems and enforce this law. At least initially, the enforcement process will be triggered by complaints. So Company A could snitch on Company B, thereby triggering an investigation. Similar provisions come into force next January that apply to the installation of computer programs. It also permits private lawsuits after July 1, 2017. Inevitably, this will lead to more class-action lawsuits.

The United States took a very different approach when it introduced its CAN-SPAM Act of 2003, which only applies to emails. American online electronic communication is based on the opt-out principle: You receive an email then notify the sender if you do not want to receive any more.

After July 1, a commercial message cannot be sent to or from Canada unless the recipient has already consented to receive it (they opt in). Paradoxically, it will be illegal to send a commercial message to another person requesting consent, where there is no existing relationship, because the request constitutes a commercial message.

Individuals and organizations will need to understand the consent provisions, the required form and content provisions and the specific messages that are exempt from some or all of the prescribed requirements. They will need to examine how they communicate and then update their databases and computer systems.

How can people prepare for the law? Understand its requirements, commit to meeting them, analyze your existing communications, identify gaps in procedures and infrastructure, implement a compliance plan and educate and train staff.

The anti-spam law will become a new reality of commercial life in Canada. Action now will make it easier to comply.


Robert Gabor is a corporate, commercial and technology lawyer at the Winnipeg law firm Aikins, MacAulay & Thorvaldson LLP.

Republished from the Winnipeg Free Press print edition April 28, 2014 0

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