On December 15, 2010, the Canadian government (then described as the Harper Government) celebrated the granting of royal assent for the Fighting Internet and Wireless Spam Act, Canada’s long overdue anti-spam legislation. The last step for the bill to take effect was to finalize the associated regulations. Passing those regulations ultimately proved more difficult than passing the law itself, as an onslaught of lobby groups used the regulatory process to try to delay, dilute, and ultimately kill the anti-spam law.
Nearly three years after the legislation received royal assent, Industry Minister James Moore today announced that the regulations are now final and the law will begin to take effect next year (the spam provisions take effect on July 1, 2014; the software provisions start on January 15, 2015). The finalized regulations involve further concessions to the lobby groups opposed to the legislation as they create a new exception for third party referrals (permitting a single referral without consent) and largely exempt charities from many of the new rules. The private right of action that would facilitate lawsuits to combat spam will be delayed until July 1, 2017. These issues were all extensively discussed and debated during the legislative process and there was no need for further changes.
While those changes are a disappointment, the far bigger story is that Canada finally has an anti-spam law grounded in an “opt-in” approach that requires marketers to obtain customer consent before sending commercial electronic messages.
The finalized regulations include several new or expanded exceptions:
- details on a business-to-business exception including emails sent “to an employee, representative, consultant or franchisee of another organization if the organizations have a relationship and the message concerns the activities of the organization to which the message is sent”
- registered charities engaged in fundraising
- political parties and political candidates seeking financial contributions
- messages to sent to recipients in countries with approved anti-spam laws (there is a list of those countries in the regulations which highlight just how far behind Canada is on this issue)
- messages on limited-access, secure and confidential accounts that can only be provided by the recipient
- messages in messaging services that make information on opting out readily available
- third party referrals for the first commercial message (ie. one opportunity to send a third party referral message)
- messages responding to complaints or customer inquiries
- messages related to legal obligations or enforcing legal rights
The finalized regulations are also significant in that they represent a rejection of an extensive lobby campaign based on generating fear, uncertainty and doubt about a law that actually allows for virtually any marketing with consent and includes a myriad of exceptions for organizations across the country. The Canadian Chamber of Commerce led the charge, arguing that opt-in should be dropped for business-to-business email altogether and that the government should have held another round of consultations to further delay the rest of the legislation (it hoped to change the definitions within the law, something the government rejected). The Chamber was joined by organizations such as CRIA/Music Canada, which claimed the law would pose an “immense threat to independent labels and young bands.”
Moreover, despite the numerous carve outs, the business groups claimed that the law would result in significant new expenditures, including the need to maintain a database of opt-in consents and a website to allow for easy access to contact information and unsubscribe mechanisms. Yet those businesses are already required to maintain databases with opt-out information and electronic marketing without a website seems somewhat pointless.
The reality is that the new law will require many businesses to adjust (I address some of key issues in posts here, here, here and here). However, opt-in systems, form requirements, and unsubscribe mechanisms are found in countries around the world and their businesses have not ground to a halt. For thousands of Canadian organizations with mailing lists and active marketing activities, once they ask for and obtain consent, there will be no need to focus on exceptions or loopholes in the law. Simply asking customers for consent – the slow pace of implementation means that all organizations have years to do it – and they will have met the major requirement to continue electronic marketing to them in compliance with Canada’s new law.
The law won’t stop all spam, but it should enable authorities to target the worst offenders backed by tough penalties. It should also foster a change in attitude toward the use of personal information for marketing purposes as consumers demand opt-in consents for electronic marketing and greater disclosure during the installation of computer software. With the government emphasizing a “pro-consumer” approach, finalizing the anti-spam regulations represents a long-overdue win for consumers as Canada becomes the last major developed economy to implement anti-spam legislation.