Canadian anti-spam legislation

The Canadian Fighting Internet and Wireless Spam Act (the Act) creates new offences when sending commercial email in to and out from Canada. FISA, as it is known, is an example of the sort of restrictions email marketing might be facing in years to come.

The act creates a new definition: commercial electronic messages (CEM) which means the Act is not restricted to email marketing.

There is one provision which is of major import to us. Simply put, it says that you need the consent of the recipient before sending a commercial email to someone inside Canada or from Canada. It seems rather restrictive initially but lightens a bit after that.

What is clear is that you will need to have separate email lists. The absolute minimum is one for those in Canada and another email list, or lists, for everyone else.

There are three exemptions where consent to receive commercial emails can be inferred.

The first is when there is an existing business relationship or a non-business relationship with the recipient. The former is defined as when a person has bought or leased a product, goods or services, or bartered with you or entered into a contract. The latter is defined as a person who donates to, volunteers for or becomes an official member of your organisation.

The second exemption is when a person has published their electronic address in a prominent manner, with the added requirement that the email must be related to the recipient’s professional capacity.

The same caveat is included in the third exemption: when a person provides their address directly to the sender. All exemptions are limited by the provision that such persons can opt out of receiving commercial emails.

The penalties are rather severe. Individuals are liable to a fine of $1 million and organisations of $10 million. Further the Act allows for damages to be awarded.

It would appear that the Act is aimed at spammers and that others who make mistakes will not be prosecuted if they can prove ‘due diligence’. It might be a good idea to keep a record of how you obtained every address on your email list.



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