As reported in the April 2011 issue of this Newsletter, Canada’s anti-spam legislation, “Fighting Internet and Wireless Spam Act” (the “Act”), was passed by the Canadian Parliament in late 2010. However, the Canadian Government delayed bringing the legislation into force pending the adoption of regulations to clarify certain obligations under the Act.
On June 30, 2010, the Canadian Radio-Television and Telecommunications Commission (CRTC) issued draft regulations which were open for public comment until August 29, 2011. On July 9, 2011, the Department of Industry issued a further set of draft regulations which are open for public comment until September 7, 2011.
It is expected that both the Act and the regulations will come into force this fall after the period for public consultation expires. Charities will need to be aware of the provisions in this new legislation, as emailed donation requests or other promotions could fall under the scope of these rules.
Commercial Electronic Message and Requirement for Consent
As we reported in April, the anti-spam provisions of the Act apply to “commercial electronic messages” (CEM), which are defined broadly to include any transmission that has a purpose of encouraging participation in a commercial activity. “Commercial activity” is defined to include any conduct that has a commercial character, whether or not carried on for profit. Thus, the definition of CEM could include donation requests and fundraising or other promotions sent by email from a charity.
The Act prohibits a sender from transmitting a CEM to an electronic address, unless: (i) consent to send has been obtained from the individual associated with the electronic address, and (ii) certain requirements to include information in the message are met.
Unless one of the exceptions set out in the Act applies, consent from the intended recipient of a CEM is required, and consent may be express or implied. Under the Act, a request for express consent must set out the purposes for which consent is sought and meet certain requirements to include information. Implied consent may arise based on an existing business or non-business relationship.
Information and Form Requirements
The Act requires CEMs to: (i) identify the sender; (ii) set out methods for contacting the sender; and (iii) direct how to opt out of or “unsubscribe” from receiving further messages. The means to unsubscribe must be effective for at least sixty days from the date on which the electronic message was sent, must be provided at no charge to the recipient, and must meet certain accessibility requirements described below.
Under the draft CRTC Regulations, all CEMs that are covered by the Act must set out, in a prominent manner; information about the name of the person sending the message and any other person on whose behalf the message is sent; any different name(s) by which such persons carry on business; and the physical and mailing address, telephone number (which includes access to an agent or voice message system), email address and web address of such persons.
The foregoing information together with the unsubscribe mechanism may be provided by a clear and prominent link to a web page, but in such case, the web page must be accessible by a single click and at no cost to the recipient. The unsubscribe mechanism must also be easy to access and use, as evidenced by a process that takes two or fewer clicks.
Personal Relationship and Family Relationship
The Act provides that if a “family relationship” or a “personal relationship” exists between the sender and the recipient, messages between them (including commercial messages) are not required to comply with the Act.
Under the draft Industry Regulations, a “family relationship” is defined in detail as one arising from a blood relationship, marriage, a common-law partnership or adoption. A “personal relationship” means the relationship, other than in relation to a commercial activity, between the sender and recipient of a message, if they have had an in-person meeting and, within the previous two years, a two-way communication.
Exceptions applicable to charities and non-profit organizations
The Act sets out several circumstances in which two persons will be deemed to have an “existing non-business relationship”, whereupon consent for the sending of unsolicited CEMs will be implied. One such instance is where the sender is a registered charity and the recipient has made a donation or performed volunteer work for the charity in the preceding two years. Another such instance is where a club, association or voluntary organization (a “CAVO”) sends a CEM to a person who is currently, or who was in the preceding two years, a member of such CAVO.
The draft Industry Regulations define “membership” as the status of having been accepted as a member of a CAVO in accordance with its membership requirements. The draft Industry Regulations define a CAVO essentially by adopting the definition of non-profit organization in section 149(1)(l) the Income Tax Act. Notably, however, the requirement in 149(1)(l) that the organization not be a charity is excluded from the definition of CAVO. Thus, membership in a registered charity may constitute membership in a CAVO for the purposes of the anti-spam law.