Canada's Department of Industry
("Industry Canada") and the Canadian Radio-Television and
Telecommunications Commission ("CRTTC") have proposed draft
regulations to implement Canada's Anti-SPAM legislation, Bill C-28 - the Fighting
Internet and Wireless Spam Act (the "Act"). Enacted on December
15, 2010, the Act charges the two agencies with the task of implementing
regulations to carry out different portions of the Act. The regulations would
likely come into force later this year. Canada's "opt-in" legislation
requires express consent to receive commercial electronic messages, which
include text, e-mail, image, or voice messages, subject to certain limited
Industry Canada's proposed
regulations address some key terms and issues, including: (1) the
definition of a "personal relationship" and "family
relationship"; (2) when consent to receive messages from third parties is
valid; (3) additional requirements for the "unsubscribe" mechanism;
and (4) the definitions of "membership" and "club, association,
or voluntary organization," to clarify when an existing business
relationship exists. Proposed definitions for personal and family relationships
would be significant to marketers engaged in "forward to a friend"
campaigns since "inciting" individuals to forward commercial
electronic messages to others who fall outside the established definitions for
friends and family constitutes spam. In the U.S., the Federal Trade
Commission's ("FTC") view is that refer a friend messages are subject
to CAN SPAM if consideration or inducement to do so is offered (e.g.,
extra chances to win in a sweepstakes).
The CRTTC's proposed regulations,
on the other hand, would regulate certain forms of electronic contact.
Specifically, CRTTC's draft regulations: (1) require certain content to be
included in each commercial electronic message; (2) establish the form of any
"unsubscribe" mechanism so that such mechanism must be able to be
performed in no more than two clicks; (3) set out certain requirements
for obtaining express consent, similar to those proposed for the content
requirements; and (4) set out notice and consent requirements in connection
with certain functions of computer programs.
The deadline for comments on
Industry Canada's proposed regulations is August 22, 2011, while the
deadline for comments on the CRTTC's proposed draft is August 29, 2011.
Businesses using e-mail to conduct North American marketing campaigns should
follow these rules closely.
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