Canada’s business and legal
community is bracing for the
world’s most comprehensive
anti-spam and anti-spyware law,
expected to be in force sometime
in the new year.
Amid concerns about its complexity and scope, the overly prescriptive nature of recently proposed draft regulations, and
potential costs associated with
compliance, the legislation still
awaits proclamation after being
passed in December, 2010.
Experts say organizations conducting business online will need
to reassess their business practices and implement significant
changes to the way they electronically communicate with customers and potential customers.
Draft regulations intended to
clarify the law have come under
fire since they were published for
comment by the Canadian Radio-Television and Telecommunications Commission (CRTC) and
Industry Canada, the government bodies responsible for
enforcing the law.
More than 50 submissions
were made to each government
body, the majority supporting
government efforts toward outlawing spam and spyware but also
critical of the draft regulations,
asserting that compliance would
be onerous and costly. Calls for a
second round of consultations to
fine-tune the regulations have
been growing, though there are no
plans for revisiting the issues.
“If you look at the difficulties
that an overwhelming [number
of] business organizations raise,
it’s definitely advisable to have a
second round to try to fix identi-
fied problems,” said Barry Sook-
man, a partner with McCarthy
Tétrault LLP in Toronto and the
former head of the firm’s Inter-
net and Electronic Commerce
Group. “There is no doubt that
the problem is the structuring of
the prohibitions both for spam
and malware. The prohibitory
and prescriptive approach is
bound to cause unintended con-
sequences, and that’s what the
business community has pointed
that needs to be fixed.”
The proposed regulations are
under review, and Industry Can-
ada is “developing options for
consideration,” Industry Canada
spokeswoman Olivia Staciwa
said in an e-mail exchange. “Next
steps will be determined in the
near future.”
The new anti-spam legislation
prohibits sending unsolicited
commercial electronic messages,
including e-mails, text, sound,
voice or image messages, unless
recipients give either express or
implied consent. The draft regu-
lations, described as over-the-top
When you have businesses that are struggling
in a global recession, that are struggling to have
resources to spend to innovate, to invest in new
technology to compete internationally— and you
impose these costs, particularly now when they
can least afford it, you raise the question as to
whether that is the policy we want for this country.
“
Barry Sookman, McCarthy Tétrault LLP
by critics, provide guidance on
information to be included in
requests for consent as well as in
commercial electronic messages.
Detractors point out that once
consent has been obtained, all
commercial electronic messages
must include in a prominent
manner prescribed information,
such as the name, the physical and
mailing address, a phone number
with access to an agent or voice-mail system, a web address and
e-mail address of both the sender,
and the business on whose behalf
the message is being sent. A clear
unsubscribe mechanism must
also be included in messages.
The regulations do provide
exceptions, but even they have
raised eyebrows. While sending
unsolicited commercial elec-
tronic messages is not prohibited
if sent by a person— or on behalf
of a person — who has a “personal
or family relationship” with the
recipient, questions linger over
the definition of personal rela-
tionship. The draft regulations
stipulate that, in order to qualify
as having a “personal relation-
ship” with another person, the
two individuals must have met in
person and must have had a two-
way communication within the
last two years.
afford it, you raise the question as
to whether that is the policy we
want for this country.”
Some are not convinced that
the new anti-spam and anti-spy-
ware legislation, and its accom-
panying draft regulations, will
have such a harsh impact on Can-
adian business.
“Honestly, the impact is going
to be rather limited,” said Charles
Lupien, who practices in the fields
of technology and intellectual
property for Fasken Martineau
Dumoulin LLP in Montreal. While
acknowledging a significant
impact on email marketing,
Lupien said the draft regulations
fleshed out the legislation rather
than impose new obligations.
“Most clients are grumbling,”
Lupien said. “They don’t see this
as the end of email marketing but
the end of a style of email mar-
keting. The days where we bought
lists from dubious sources are
gone. Email marketing is going
be more targeted, more rel-
evant — at least we hope.”
The issue remains divisive. In
submissions to the CRTC and
Industry Canada, the Canadian
Bar Association underscored the
“serious risk” of unduly restricting
commercial electronic messages
to the detriment of both Can-
adian consumers and Canadian
business. The prescriptive nature
of the regulations stirred debate
within the organization.
“There was a healthy debate,”
said Alex Cameron, chairman of
the CBA’s national privacy and
access law section. “In terms of
whether the prescriptive
approach is a good thing or a bad
thing, there were different per-
spectives. One is that you should
have left it open so that there is
flexibility, while the other believes
that prescribing provides clarity.
Lawyers from all walks of life
participated so the CBA tries to
put out submissions that are bal-
anced and not one-sided.”
There is no question, though,
that Canadian business—and
their legal advisors—will eventu-
ally have their hands full grappling
with the legislation and its regula-
tions. Mann warned that busi-
nesses should be fully aware of the
impact the legislation may have on
their business activities and keep
on top of new legal developments.
He also suggested that they exam-
ine the way they currently com-
municate with clients, and begin to
document consent they have
obtained or to obtain consent now
before the regulations are in force.
Businesses should also be aware of
the exceptions. When sending out
commercial electronic messages, it
would be a good idea to start
adapting them to comply with the
regulations as they stand—even
though there is a chance they may
change. “There is quite a bit on
their plate,” Mann concluded. n
