On July 9, 2011, the proposed Electronic Commerce Protection Regulations were published in the Canada Gazette. These regulations define certain key terms in Canada’s new anti-spam legislation1 which, barring specific exceptions, prohibits sending commercial electronic messages without the recipient’s prior consent (spam).
Definitions of personal relationship and family relationship
The prohibition against sending spam does not apply where a commercial electronic message is sent between persons who have a “personal or family relationship.” Under the proposed Regulations:
- “Family relationship” refers to individuals who are connected by a blood relationship (i.e., grandparent, parent, child, sibling, or of common descent from a grandparent), marriage, a common-law partnership, or adoption, and includes those connected by a blood relationship to one of the non-blood-related individuals set out above (i.e., father-in-law, brother-in-law, etc.).
- “Personal relationship” refers to individuals that have met in a non-business context and exchanged communications with each other within the previous two years.
Conditions for use of consent
Under the proposed Regulations, a person who obtains consent on behalf of others to send electronic commercial messages must ensure the message contains:
- The identity of the person who originally obtained consent; and
- An unsubscribe mechanism that permits the recipient to withdraw consent from the person who obtained it or from any other person authorized by the latter to send the recipient electronic commercial messages.
Persons who obtain consent must also ensure that any person they authorize to use the consent notifies them when it is withdrawn, and must in turn notify the withdrawal of the consent “without delay” to others they authorized to use it.
Definitions of membership and club, association or voluntary organization
Consent is implied where the sender and recipient have an “existing non-business relationship,” which includes membership in a “club, association or voluntary organization” within the past two years. Under the proposed Regulations:
- “Membership” refers to being a member of a club, association or voluntary organization in accordance with its requirements.
- “Club, association or voluntary organization” refers to a non-profit organization that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than profit, if no part of the income of the organization is payable to or otherwise available to any proprietor, member or shareholder of the organization for personal use unless they are a promoter of amateur athletics in Canada.
The author wishes to thank Mr. Saro Setrakian, summer student, for his help in preparing this legal update.
1 An Act 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, and to amend the Canadian Radio-Television and Telecommunications Commission Act, the Competition Act and the Personal Information Protection and Electronic Documents Act and the Telecommunications Act
Download Proposed Canadian anti-spam regulations (pdf 86kb)
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