Canada’s Anti-Spam Bill May Adversely Impact Fashion Marketing in Canada

Bill C-28, Canada’s anti-spam bill was passed on December 15, 2010 and is expected to be enacted as law sometime later this year/ early 2013.  The purpose of the bill is to establish “a regulatory framework to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities.”  The U.S. has a similar bill, the CAN-SPAM ACT of 2003, which creates an “opt-out” mechanism for recipients of unsolicited electronic messages.  If you receive promotional emails from our favorite retailers, you should notice an “unsubscribe” option at the bottom of the email.  If you don’t the sender is most likely in violation of the CAN-SPAM Act.  

Canada’s Bill C-28 provides an additional hurdle for email marketing and that is an “opt-in” requirement.  Essentially, email addresses that have been obtained automatically by businesses are off limits for advertising, marketing, and any other electronic correspondence (yes, that includes texts) that are sent without the consent of the recipient.  The Bill outlines ways in which a company can obtain consent (express or implied consent), but the fact is that if companies are not careful, they could find themselves in a precarious situation.  The financial implications of violating this law are even more astounding.  It is possible that an individual who sends an email without the consent of the recipient can be responsible for fines up to $1,000,000.  And businesses who send electronic messages can be expected to pay up to $10,000,000!  

This bill is intended to reduce/ eradicate the abuse of “spam,” which accounted for at least 80% of electronic correspondance in Canada alone in 2004.  However, the overbroad provisions leave much room for interpretation,  and some of your favorite retailers may find themselves out of fashion quite quickly if they are found to have violated this law.  

While we await codification of the bill, here are some things to ponder for those who don’t consider themselves spammers. (Derived from slaw.com).

The act starts with a broad definition of “commercial electronic message”, and says that you can’t send them unless it fits within a specific exemption. One of the keys will be to figure out what the boundaries are of “commercial activity”.

“Electronic message” is broadly defined to include a message to email, instant message, phone, or “any similar account”. That could include things like a twitter direct message – but I would think not a general tweet to people who choose to follow you.

In some circumstances you can send the message, but must include accurate information about the sender, and a way to opt out of future messages.

It is not spam if the recipient consented to receive the message. The Act has extensive provisions defining what amounts to explicit or implicit consent. It includes things we might expect, such as on ongoing business, personal or family relationship – some of which have two year windows. Also exempted are messages to those who publish their address or have provided you with their address – so long as the message is relevant. I suspect that means that since my email address is published on our firm web site and other places, you will be able to email me with anything relevant to the practice of law – but you won’t be able to email me trying to sell me a trip.

Or if I hand you my business card, the same applies.

It is up to the sender to show that they have consent if there is a complaint. So will we need to track that to be safe, i.e. somehow track that you got my address from our web site, or the card I handed you?

Directors and officers personal liability will be tempered if they can show diligence. Since almost everyone in an organization routinely sends email, tweets, etc., organizations may want to set up policies and training programs to educate employees and reduce potential corporate, director and officer liability.

Exemptions for an “existing non-business relationship” includes donations, volunteer work, or memberships – with a two year window. Charities will need to review these provisions carefully, as they will affect how they approach prospective donors and volunteers.

One example to think about is a press release. Those sending a press release will need to think about the purpose of the release, and who is on the email list. Is it being sent beyond traditional news services? Does the fact that a recipient has published their email address on their firm’s website mean that they can or cannot get the release depending on the content of the release? Does the fact, for example, that my email address is listed on my newspaper column mean I can be sent emails that could not be sent if my address was only on our firm web site? Does it make a difference that I may be listed somewhere on a list of journalists because I write a newspaper column? Are bloggers considered the same as journalists? Does it make a difference if my address is disclosed on various social media platforms, such as Facebook, LinkedIn, Twitter, or .tel?

Am I restricted from sending personalized individual emails to a handful of influential people active on social media who I hope will spread whatever message I want to get out? Am I going to have to analyse each recipient to see how close or distant a connection they have under the exemptions, or how their email address has been published?

Will the answer be different if I send it to them as direct message on twitter, rather than by email?

How will senders possibly track all this, or find the time to do so?