Long before sites such as Youtube and Twitter were even created, the Canadian government established a national task force to examine concerns associated with spam and spyware. The task force completed its work in May 2005, unanimously recommending that the government introduce anti-spam legislation (I was a member of the task force). Four years later, then-Industry Minister Tony Clement tabled an anti-spam law, which underwent extensive committee review before receiving royal assent in December 2010.
While most expected the government to quickly bring the new law into force, the regulation-making process became bogged down by an intense lobbying effort designed to sow fear, doubt, and uncertainty about the legislation. Business groups relied upon implausible scenarios to argue that Canada would be placed at an economic disadvantage, despite the fact that government officials were able to identify over 100 other countries that have similar anti-spam regimes. The lobbying was a partial success, however, as the regulations went through two drafts and three more years of delay.
Almost a decade after Canada started down the path toward anti-spam legislation, Industry Minister James Moore announced last week that the regulations are now final and the law will begin to take effect next year. There will be still yet more implementation delays – the anti-spam rules start on July 1, 2014, safeguards on software installations begin on January 15, 2015, and a private right of action that facilitates lawsuits to combat spam will be delayed until July 1, 2017 – but it appears that Canada will finally get an operational anti-spam law.
What will the new law mean for Internet users and businesses?
For millions of Canadian Internet users, the law should provide them with greater control over their in-boxes since it is grounded in an “opt-in” approach that requires marketers to obtain customer consent before sending commercial electronic messages. The shift to opt-in consent will be felt across all marketing activities as consumers increasingly expect that their personal information will only be used with their prior permission.
The law is unlikely to eliminate all spam – no law can single-handedly accomplish that – but with several large Canadian-based spamming organizations operating within the country, enforcement agencies will now have the tools to bring legal actions that could yield multi-million dollar fines and grind spamming activities to a halt.
Canadian businesses will have to adjust to the new law, but most already maintain databases of opt-out consents and provide their customers with information on how they can unsubscribe from further marketing materials. The new law establishes some additional form requirements and shifts toward opt-in consents, but the fundamental need to actively manage personal information remains unchanged.
The most challenging aspect of the law may come from the myriad of exceptions that have been incorporated into the law and its regulations. For example, last week the government expanded the exceptions for business-to-business emails, for charities that send emails for fundraising purposes, for the first email sent as a result of a third party referral, for political parties and candidates, and for messages that respond to consumer complaints or inquiries.
There are numerous other exceptions available to businesses, but the simpler compliance approach will be to ask consumers for consent. The law includes a long phase-in period for existing consumer relationships, providing ample opportunity to obtain a consent that ensures businesses can use the personal information indefinitely (or until the consumer revokes their permission).
This suggests that the days of relying on “implied” or opt-out consent that gave business the power to use customer information without their explicit permission will soon be over. With the government emphasizing a “pro-consumer” approach, finalizing the anti-spam regulations represents a long-overdue win for consumers as Canada has become the last major developed economy to implement anti-spam legislation.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
