Privacy & Information Security Law Blog

Adam Kardash from Heenan Blaikie LLP in Canada reports that Industry Canada and the Canadian Radio-television and Telecommunications Commission (“CRTC”) have released draft regulations for Canada’s Anti-Spam Legislation (“CASL”).  CASL imposes a consent-based anti-spam regime that restricts organizations’ ability to send commercial electronic messages.  Industry Canada and the CRTC are charged with the task of implementing regulations under CASL.

Industry Canada’s draft regulations were published on July 9, 2011.  The draft regulations define the scope of a key exception to the requirement to obtain consent for the sending of commercial electronic messages.  Specifically, CASL permits the sending of a commercial electronic message without consent where the sender has a “personal relationship” or “family relationship” with the recipient.

Under the draft regulations, a “family relationship” means a relationship between individuals who are connected by: (1) a blood relationship, (2) marriage, (3) a common law partnership, or (4) adoption.  A “personal relationship” means the relationship, other than in relation to a commercial activity, between an individual who sends a message and the recipient, if they have had an in-person meeting and, within the previous two years, a two-way communication.

These new definitions of personal and family relationship are significant from a marketing perspective.  They may require Internet and email marketers to review and adjust “forward to a friend” campaigns to make certain that “they are not inciting” individuals to forward commercial electronic messages to recipients who fall outside the established definitions for friends and family in violation of CASL.

The CRTC’s draft regulations, published on July 2, 2011, address (1) the form and content to be included in commercial electronic messages, (2) requirements for a request for express consent for the sending of commercial electronic messages, and (3) notice and consent requirements in connection with the function of computer programs.  Of particular note, the draft regulations provide that, in order to obtain express consent to send commercial electronic messages, the request for consent must be in writing and contain certain prescribed information, including:

• the name of the person seeking consent and the person, if different, on whose behalf consent is sought;
• the physical and mailing address, a telephone number providing access to an agent or a voice messaging system, an email address and a web address of the person seeking consent and, if different, the person on whose behalf consent is sought and any other electronic address used by those persons; and
• a statement indicating that the person whose consent is sought can withdraw consent by using the requestor’s contact information as set forth above.

Industry Canada and the CRTC have issued a call for comments on the draft regulations.

As we previously reported, CASL received Royal Assent in December 2010.