Canada's Anti-Spam Law Comes Into Force On July 1, 2014

Introduction

On December 15, 2010, Bill C-28, Canada's anti-spam legislation (the "Act")1 received Royal Assent. It establishes the following regulatory framework, for the purpose of protecting electronic commerce in Canada:

It addresses unsolicited commercial electronic mail (i.e. email, text messages, etc.) by prohibiting the sending of commercial electronic messages without consent; It prohibits conduct harmful to electronic commerce, protects the integrity of transmission data, and prohibits the installation of computer programs without consent in the course of commercial activity; It prohibits false or misleading commercial representations online; It prohibits the collection of personal information through unlawful access to computer systems and the unauthorized compiling or supplying of lists of electronic addresses; It provides for a private right of action for businesses and consumers; It allows the Canadian Radio-Television and Telecommunications Commission ("CRTC") and Competition Tribunal to impose administrative monetary penalties on violators; and It authorizes the international sharing of information and evidence to pursue spammers outside of Canada through foreign enforcement agencies. Most of the Act will come into force on July 1, 2014. However, the provisions dealing with the unsolicited installation of computer programs will come into force on January 15, 2015. In addition, the private right of action provisions will come into force on July 1, 2017.

Relevant Agencies and Responsibilities

The Act will be administered by the CRTC, the Competition Bureau, and the Office of the Privacy Commissioner of Canada. Industry Canada will also act as a national coordinating body to promote awareness of the law, to educate consumers, network operators and small businesses, to coordinate work with the private sector, and to conduct research.

The Role of the CRTC

The CRTC is generally responsible for ensuring the reliability, safety and effective operation of telecommunications networks in Canada, including the Internet. It will be responsible for enforcing the following prohibitions contained in the Act:

Unsolicited commercial electronic messages (Section 6); The alteration of transmission data (Section 7); The installation of computer programs (Section 8); and Aiding, inducing, procuring (or causing to be procured) any of the above (Section 9). Role of the Competition Bureau

The Competition Bureau currently has a mandate to ensure fair marketplace practices for business and consumers. The Act amends the Competition Act2 in a manner that allows the Competition Bureau to more effectively address false and misleading representations online and deceptive marketplace practices including false headers and website content.

Role of the Office of the Privacy Commissioner of Canada

The Privacy Commissioner is currently responsible for protecting the personal information of Canadians. The Act amends the Personal Information Protection and Electronic Documents Act3 in a manner that allows the Office of the Privacy Commissioner of Canada to enforce the following new violations:

The collection of personal information through access to computer systems in violation of federal law; and The automated collection of email addresses (address harvesting), and the use of addresses collected in that manner. Prohibitions

The most significant prohibitions contained in the Act will be enforced by the CRTC. A detailed discussion of these prohibitions appears below.

Sending Unsolicited Commercial Electronic Messages (Section 6)

This prohibition addresses the sending of unsolicited commercial electronic messages. According to Subsection 1(2) of the Act, the term "commercial electronic message" is defined as an electronic message for which it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that:

Offers to purchase, sell, barter or lease a product, goods, a service, land, or an interest or right in land; Offers to provide a business, investment or gaming opportunity; Advertises or promotes anything referred to in paragraph (a) or (b); or Promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so. Subsection 1(1) of the Act defines the term "commercial activity" as any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.

Section 6 of the Act prohibits the sending of a commercial electronic message to an electronic address unless:

The recipient has given consent (express or implied) to receiving it; and The message complies with the related regulations and also: (1) identifies the sender (and, if different, the person on whose behalf it has been sent), (2) provides contact information (valid for at least 60 days after the message has been sent) allowing the recipient to readily contact the sender, and (3) provides for an unsubscribe procedure (any unsubscribe notification received must be put into effect within 10 business days). According to Subsection 2 of the CRTC's Appendix to Telecom Regulatory Policy CRTC 2012-183 (the "CRTC Regulations"), the following information must be set out in any commercial electronic message:

The name by which the sender carries on business, if different from their name (if not, the name of the person); If the message is sent on behalf of another person, the name by which that person carries on business, if different from their name (if not, the name of the person); If the message is sent on behalf of another person, a statement indicating the person sending the message and the person on whose behalf the message is sent; and The mailing address, and either a telephone number providing access to an agent or voice messaging system, an email address or a web address of the person sending the message or, if different, the person on whose behalf the message is sent. If it is not practical to include the above information and an unsubscribe mechanism in a commercial electronic message, that information may be posted on a web page by means of a link that is clearly and prominently set out in the message.

The term "electronic message" is defined in Subsection 1(1) of the Act as a message sent by any means of telecommunication, including a text, sound, voice, or image message. This broad definition is intended to include a message sent over any means of telecommunication, including text, sound, voice or image, and therefore implicates voice mail messages, webcam messages, and the exchange of pictures or graphic files by electronic means as well.

The term "electronic address" is also defined in Subsection 1(1) as an address used in connection with the transmission of an electronic message to:

An electronic mail account; An instant messaging account; A telephone account; or Any similar account. As a result, Section 6 covers virtually all means of electronic communication, with the exception of...