June 16, 2014

Canada’s anti-spam law for self-regulating professions

Professional Regulation

Canada’s new anti-spam legislation* goes into effect July 1, 2014. You can find it here. You can also find the government’s website, which includes some FAQs, here. The Act creates consent requirements for commercial electronic communications that professionals should know about.

(* This is not the official name, but its actual name is ridiculously long, and it has no official “short” name. We’ll just call it the Act.)

To start, the Act does not restrict two-way voice communications, messages sent by facsimile, or voice mail (s.6(8)).

For statutory regulators: The Act likely makes no difference to statutory regulators.** It restricts the sending of any “commercial electronic message” (s.6(1)), which means a message that has a purpose of encouraging “participation in a commercial activity” (s.1(2)). A “commercial activity” means conduct “of a commercial nature,” even without expectation of profit (s.1(1)). But in addition to not extending the prohibition to non-commercial activity, the Act expressly exempts conduct carried out for the purposes of “law enforcement” and “public safety.” This means that to the extent any regulatory activity is an aspect of law enforcement, or aimed at public safety, and in any event not commercial in nature, regulators appear to fall outside of the Act’s prohibitions.

(** As in all legal matters, the Act’s meaning will ultimately depend on the courts.)

Notably, the Act appears to allow suppliers, or potential suppliers, to send commercial messages to regulatory bodies or their staff through their published electronic addresses. The Act implies consent where a recipient “has conspicuously published, or has caused to be conspicuous published, the electronic address… the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages… and the message is relevant to the person’s business, role, functions or duties in a business or official capacity” (s.10(9)(b)).

For non-statutory associations: Professional associations or societies may be captured by the Act, which requires that electronic messages only be sent to recipients with their express or implied consent. However, the Act allows messages with factual information about a recipient’s ongoing subscription or membership, and about the use of services under a subscription or membership (s.6(6)(d)).

The Act also deems the implied consent of a recipient if the sender and recipient have an existing business relationship, or an existing non-business relationship (s.10(9)(a). An “existing non-business relationship” arises from a recipient’s membership, within the previous two years, with a sender that is a “club, association or voluntary organization” (s.10(13)(c)).

The Act further deems implied consent if the recipient has disclosed their email to the sender (s.6(9)) “without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address”, and if “the message is relevant to the person’s business, role, functions or duties in a business or official capacity” (s.6(9)(c)).

For professionals – existing clients: The Act does not prevent professionals from sending commercial electronic messages to current or previous clients, within two years of their last contract, or from their last receiving services. An existing business relationship arises from a purchase of services (or a product or goods) within two years of the message being sent (s.10(10)(a)); from any contract that is current, or that expired within two years of the message being sent (s.10(10)(d)); or from any inquiry or application within six-months of the message being sent (s.10(10)(e)). This means that the Act does not interfere with electronic booking systems, for example, where they send reminder emails to clients about upcoming appointments, or send receipts for past appointments.

For professionals – prospective clients: The Act prohibits a commercial electronic message unless (a) the recipient has given express or implied consent, (b) the message includes certain information identifying the sender (including contact information), and (c) the message provides an “unsubscribe” mechanism (s.6(1) and (2)). However, the Act provides a three-year transition period, during which it deems a recipient’s implied consent where the sender and the recipient have an existing business relationship or an existing non-business relationship.

To maintain existing mailing lists, professionals should ideally send emails to obtain the express consent of recipients to receive emails. Express consent does not lapse after two years, unless the recipient withdraws consent. But since an email seeking a recipient’s consent to receive further commercial messages is itself a commercial message, professionals should send consent-seeking emails BEFORE JULY 1, 2014.