Canada Proposes Anti-Spam Regulations

Date: Aug 11, 2011

Canada's Department of Industry ("Industry Canada") and the Canadian Radio-Television and Telecommunications Commission ("CRTTC") have proposed draft regulations to implement Canada's Anti-SPAM legislation, Bill C-28 – the Fighting Internet and Wireless Spam Act (the "Act"). Enacted on December 15, 2010, the Act charges the two agencies with the task of implementing regulations to carry out different portions of the Act. The regulations would likely come into force later this year. Canada's "opt-in" legislation requires express consent to receive commercial electronic messages, which include text, e-mail, image, or voice messages, subject to certain limited exceptions.

Industry Canada's proposed regulations address some key terms and issues, including: (1) the definition of a "personal relationship" and "family relationship"; (2) when consent to receive messages from third parties is valid; (3) additional requirements for the "unsubscribe" mechanism; and (4) the definitions of "membership" and "club, association, or voluntary organization," to clarify when an existing business relationship exists. Proposed definitions for personal and family relationships would be significant to marketers engaged in "forward to a friend" campaigns since "inciting" individuals to forward commercial electronic messages to others who fall outside the established definitions for friends and family constitutes spam. In the U.S., the Federal Trade Commission's ("FTC") view is that refer a friend messages are subject to CAN SPAM if consideration or inducement to do so is offered (e.g., extra chances to win in a sweepstakes).

The CRTTC's proposed regulations, on the other hand, would regulate certain forms of electronic contact. Specifically, CRTTC's draft regulations: (1) require certain content to be included in each commercial electronic message; (2) establish the form of any "unsubscribe" mechanism so that such mechanism must be able to be performed in no more than two clicks; (3) set out certain requirements for obtaining express consent, similar to those proposed for the content requirements; and (4) set out notice and consent requirements in connection with certain functions of computer programs.

The deadline for comments on Industry Canada's proposed regulations is August 22, 2011, while the deadline for comments on the CRTTC's proposed draft is August 29, 2011. Businesses using e-mail to conduct North American marketing campaigns should follow these rules closely.

For more information on privacy, data security and e-commerce issues, contact Sheila A. Millar at 202 434-4143 or via e-mail at millar@khlaw.com, or Tracy P. Marshall at 202 434-4234 or via e-mail at marshall@khlaw.com.