60% of Canadian and US Businesses Unaware of Canadian Spam LawWritten by Sue Walsh on May 23, 2012
The law, known as Bill C-28, was passed in December 2010, but there has been a lot of foot dragging since then by the legislature and a fair amount of outcry from businesses. It’s likely to finally go into affect as early as this fall. Companies all over the world need to be aware of the law and what they need to do to be in compliance, because it applies to any company that sends commercial email to Canada, even if they are located elsewhere. The penalties for violations are stiff-fines of up to $10 million per offense, and the right for individuals to seek damages. The law allows individuals the right to demand $200 per spam message, and for class action suits to be filed.
‘“Commercial electronic messages” encompass communications that have any commercial goal—including discount offers, promotions, and newsletters. In other words, says Fasken Martineau associate CharlesLupien, a “simple, run-of-the-mill e-mail” that a company wouldn’t think of as malicious spam will be viewed as illegal under this law, sans prior consent.
Some examples of what would be covered under Bill C-28: A law firm that sends out a mass mailing about a free conference it’s hosting. Or a beverage company’s e-news about its latest juice, sent to a recipient list it obtained from an industry association. Or a company that contacts a client list that dates back five years, announcing, ‘We’re new and improved and we want you back as a customer.’’
Companies are advised to go through their mailing lists and do some housekeeping. The law mandates that companies prove they had prior consent from everyone on their mailing lists (and the law prohibits companies from sending an email asking for consent). The exception is if they can prove they had a business relationship with the individual within the two years prior to sending the messages. If they can, they don’t need to prove they had prior consent.
The law also applies to text messages and Facebook messages as well. As you can see, this law is a complex and far reaching one, so if your company hasn’t made itself familiar and/or compliant yet, you need to do so ASAP.