Canada’s New Anti-Spam Legislation: Regulation Update

Canada’s Anti-Spam Legislation (CASL), also known as Bill C-28, has received a lot of support from consumers, businesses, professionals and legal and consumer groups. However, there was some ambiguity that could cause legal uncertainty when interpreting key terms and the impediment to the ability of businesses to market to their clients.

In order to address these issues, Industry Canada conducted public consultations and as a result received 55 submissions regarding the proposed CASL regulations.  The first consultation period ended on September 7, 2011 and the second phase of consultations are now open.

Consultations were held in the hopes that all recommendations, concerns and issues would be clarified in preparation for Bill C-28’s implementation.

The regulations that were clarified were:
 
a) Family relationships and personal relationships
b) Limited exemptions for certain types of messages
c) Limited exemptions for protecting, upgrading and updating computer networks
d) Third-party referrals
e) Membership definition

Definition of “Family Relationships” and “Personal Relationships”

Family relationship has been clarified to mean individuals that are:
 
a) related by blood or are descended from a common grandparent;
b) married couples;
c) common-law partnerships and;
d) adopted children are counted as family relationships.

Personal relationships on the other hand, are classified as relationships that are between individuals that have had direct and voluntary contact with one another over a specified amount of time. 

Limited exemptions for certain types of messages

The CASL does not apply to individuals that communicate with another individual in the same organization; this includes employees, representatives, franchisees and contractors.

Similarly, messages that are sent between two organizations are exempt from the CASL as long as a prior business relationship has been established. Messages also become exempt if the information contained within have an effect on the performance and duties of the individuals and their organizations. 

Messages sent as a response to requests, inquiries, complaints or other forms of solicitations of a company’s products and/or services.

Messages sent are exempt if it satisfies a legal obligation or provide notice of an existing or pending right, obligation, court order, judgement or tariff.

Limited exemption for protecting, upgrading and updating computer networks

Initially, the CASL stated that all computer software are prohibited from being installed on a computer if consent has not been given. This has now been revised. For the purpose of conducting business, all telecommunications service providers or TSPs are exempt from the CASL provided that software installed is intended for the security of its networks. This also means that TSPs are exempt from acquiring consent when conducting system updates and upgrades to its clients.

Third-party referrals

Electronic messages that are sent as a result of a referral are exempt from the CASL; this is however, limited to the first message sent. There are also certain limitations to referrals. First, there must be a relationship (business, non-business, personal or family) between the referring party and the referred party. Furthermore, the sender of the message can only send more messages, provided that consent was provided. Rules regarding the first message involve clearly identifying the full name of the referring party and an unsubscribe mechanism to prevent further messages.

Membership Definition

A membership simply means being registered in an existing non-business relationship organization. The organization must be a non-profit organization that operates strictly for social welfare, civic improvement, pleasure or recreation or for any other purpose than the generation of profit.

For all stakeholders that would like to offer a response to the consultation, simply follow the instructions here:

“Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Bruce Wallace, Director, Security and Privacy Policy, Digital Policy Branch, Department of Industry, Jean Edmonds Tower North, 18th Floor, Room 1891D, 300 Slater St., Ottawa, Ontario K1A 0C8 (tel.: 613-949-4759; fax: 613-941-1164; email: Bruce.Wallace@ic.gc.ca).”

Deadline for submitting your comments February 4, 2013.

To learn more about the Electronic Commerce Protection Regulations, go to http://www.gazette.gc.ca/rp-pr/p1/2013/2013-01-05/html/reg1-eng.html

Related articles:

Are you Ready for the New Anti-Spam Legislation?

Canada’s Anti-Spam Legislation – Massive Fines on Companies and Individuals; Your Chance for Public Comment

Canadian Parliament passes Bill C-28, Fighting Internet and Wireless Spam

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Webnames.ca would like to inform everyone that Bill C-28, better known as the anti-spam legislation, will come into effect next year. The new legislation will change how businesses and corporations market to customers. It will become illegal to send commercial electronic messages (CEM) to customers without their expressed consent.

Companies who fail to comply with the changes or violate any of the new provisions face hefty penalties that can go up to $10 million. 

In order to protect the privacy of Canadians, the Canadian
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