Anti-Spam Legislation in Canada

Toni Polson Ashton and David Bowden
Published July 24th, 2013

Reflective of the growing maturity of this country, is the fact that an element of privacy is now expected by and accorded to people.  This will be expanded upon if Bill C-28, familiarly referred to as the Canadian Anti-Spam Legislation (CASL) Act (which received Royal Assent in December 2010), takes effect.  Since its passage, the Government has held public consultations respecting the drafting of regulations.  Some groups have strongly lobbied against the Bill.

By introducing this Bill, Canada is following efforts made in other countries including E.U. members, the U.S.A. and Australia to deal with, and possibly curtail, SPAM/JUNK MAIL /UNSOLICITED E-MAILS – whatever one choses to call them.

A primary aspect of the Canadian legislation is that it mandates express consent applying to almost all commercial e-mails and other electronic messages.  Businesses will face a significant onus in having to set up a mechanism for obtaining and documenting consent on an opt-in basis.

The new legislation is to be administered by the Canadian Radio–Television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner.

There will be limited exceptions on unsolicited commercial messages (CEMs), for example, e-mails sent to provide an estimate or quote in response to an inquiry by an individual, e-mails sent to provide warranty or recall information, and so forth.

Breach of the legislation can carry substantial penalties.

It is fair to say that many people may feel sympathetic to this pro-consumer legislation attempt/effort given the amount of SPAM that now daily invades both personal and business computers.  However, depending upon how this eventually plays out, and its effect on business, charities and other commercial operations, we may be reminded of the expression, “be careful what you ask for”.  A recent cartoon in the Law Times (June 17, 2013) showed two individuals outside a store entrance – one soliciting donations to a worthy charity; the other asking people to expressly “SIGN UP FOR SPAM” pursuant to the Authorization Request of Bill C-28.  This reminds us how far down the privacy trail Canada may be prepared to go.

On the other hand, the Federal Government recently made significant changes to membership in its Cabinet.  The Industry Minister behind the Anti-Spam Bill was moved to International Development.  This Cabinet change could delay the Industry Canada regulations being worked on under the Canadian Anti-Spa law.  One might query whether the government might even let the Anti-Spam legislation disappear altogether.