Canadian Law Calls for Opt-in for Email
The challenges to integrated marketing continue. The new Canadian anti-spam law could hold dire consequences for unsuspecting American marketers. Here’s a breakdown of what the law prohibits, and what it could mean to you if there are Canadian names on your email list.
In 2010, Canada adopted an anti-spam law called The Fighting Internet and Wireless Spam Act (FISA). The relevant regulator (CRTC) recently published its final regulations, which provide details on the required contact information and unsubscribe mechanism to be included in each commercial electronic message, and the requirements for valid consent. The law will be effective at a date to be set by the Governor in Counsel.
What this means for marketers
It is wise for marketers to assume the law is effective now since a “phase-in”period of three years ran from adoption, and there are compliance steps that one should take right away.
Here’s an important point to remember: The statute covers the “sending” of messages. It is irrelevant whether the message gets delivered or whether the address even exists. It is the transmission alone that will be deemed illicit.
And a caveat: You can still use a Canadian email address without “expressed consent” until the law’s effective date, provided it is not merely a rented name but arises from an “existing business relationship” or an “existing non-business relationship.”
Under the law, a commercial emailer must obtain the “expressed” consent of the recipient before sending commercial emails or other electronic messages, unless there is an “existing business relationship” or “an existing non-business relationship.” For addresses on file on the effective date who have not objected and with whom you have a relationship, there is assumed “implied consent” to commercial messages for two years from the establishment of that relationship.
A “business” relationship
What is a “business relationship”under the law is basically a matter of common sense. The statute defines the relationship in terms of actions or messages relating to actions. Generally, if it feels like business, it’s a business relationship. A business relationship includes enquiries also, but only for a duration of six months per each relationship.
The “non-business relationship” is similarly a matter of common sense. The non-business relationship might have involved a donation or a charitable gift made within the previous two years, such as to a political party, charity or a candidate for public office.
Some exceptions to the law exist for marketers. They include:
- Responding to a request for a quote
- Employment-related matters
- Information regarding a subscription, membership, or maintenance arrangement of the addressee
- Information regarding delivery of a product or service previously ordered
Personal messages are also exempt.
Sender information and unsubscribe options
Disclosure is required of the name and contact information of the sending company, and the company on whose behalf it is being sent. There must be an easy means to object, ie,“readily contact” the sender for 60 days from transmission. A phone number or an email unsubscribe mechanism should be acceptable to meet this requirement.
There must also be an unsubscribe mechanism in the email. This can be a link to a website or an email reply mechanism or “any other electronic means that will enable the person to indicate the wish.” The industry in Canada believes a phone number would be acceptable as well.
Painted with a broad brush
Be forewarned that the statute is not just about email spam, but any “commercial electronic message,” and any message via telecommunication, landline or mobile, such as text, sound, voice, image, IM, or “any similar account.” Presumably, that would include social media venues as well.
Noncompliance with this law can bring dire consequences. The law has penalties of up to $1 million for individuals and $10 million for businesses. The fines are “per violation,”and there are grounds to believe
that a campaign mailed over a multi-day period would draw a penalty for each day. Thus a three-day campaign might cost a company $30 million.
Be forewarned that there is also a private “right of action” for any individual or business that has been affected by a violation. Take heed: Corporate officers and directors can be held personally liable for violations.
Industry sources believe that these penalties were intended for the worst spammers, but the courts will ultimately decide who that is. Of course, if you have no physical presence in Canada, it may be that any
lawsuit against you in Canada would not be sustainable. It is doubtful that you could be sued in a US court under the Canadian law.
However, it is unclear whether a “penalty” assessed against your company in Canada might not receive enforcement by a US court. It’s best to play it safe.
Any US company with a database of addresses obtained without affirmative consent, such as rented lists or gathered addresses, should consider determining the physical locations of those addresses – and obtain consent from Canadian residents. Obviously, “.ca” domains are Canadian, but the national location of addresses with gmail or domains like “.int,” “.post,” “.co” – the list goes on – could be anywhere. Protect yourself.
Charles Prescott is a consultant and attorney specializing in marketing, privacy and international postal matters. He primarily represents companies seeking to enter new country markets. Previously with the US DMA as VP, international business development, he isnow on its board of directors. Reach him at +1.914.533.0208 or email@example.com.