A. INTRODUCTION
Charity Law Bulletin No. 238 reported on Bill C-28 concerning new legislation creating a regulatory scheme for spam and related
unsolicited electronic messages (the “Anti-spam Legislation”). Although the
Anti-spam Legislation will not apply to electronic messages — i.e., email or
other electronically distributed messages — that a charity may send requesting
donations or other solicitations for volunteers, charities and non-profit
organizations which send “commercial electronic messages” as defined in the
Anti-spam Legislation will need to ensure they are in compliance. In this
regard, charities and non-profit organizations which send emails or other
electronic messages which, for example, contain offers concerning goods,
products or services, or that advertise or promote such opportunities will want
to review the Anti-spam Legislation and the draft regulations described in this Charity Law Bulletin. According to a press release from the Minister of
Industry released on August 1, 20111, the Anti-spam Legislation will likely
come into force early in 2012.
While the Anti-spam Legislation outlined the general
prohibitions against the sending of commercial electronic messages, certain
elements of the Anti-spam Legislation were to be further detailed in
regulations to be released by Industry Canada and the Canadian Radio-television
and Telecommunications Commission (“CRTC”). As such, both organizations have
now released draft regulations, collectively referred to as the Electronic
Commerce Protection Regulations, for comment from the public.
This Charity Law Bulletin summarizes the
information contained in the draft regulations released by Industry Canada and
the CRTC.
B. DRAFT REGULATIONS
1. CRTC Draft Regulations
On June 30, 2011, the CRTC released
draft regulations pursuant to section 64(2) of the Anti-Spam
Legislation for comment (the “CRTC Regulations”). The deadline for the receipt
of comments regarding the draft regulations is 29 August 2011.
As was summarized in Charity Law
Bulletin No. 238, the Anti-Spam Legislation contains a general prohibition
against the sending of a “commercial electronic message” (“CEM”) unless the
sender has express or implied consent from the receiver and the email or
message is in prescribed form.
In this regard, the CRT Regulations set
out the form and certain information to be included in CEM. As such, the CRTC Regulation
states that a CEM must contain the following information:
(a) the name of the person sending the
message and the person, if different, on whose behalf it is sent;
(b) if the message is sent on behalf of
another person, a statement indicating which person is sending the message and
which person on whose behalf the message is sent;
(c) if the person who sends the message
and the person, if different, on behalf of whom it is sent carry on business by
different names, the name by which those persons carry on business; and
(d) 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 sending the message and, if
different, the person on whose behalf the message is sent and any other
electronic address used by those persons.
The CRTC Regulations state that where it is not practical
to contain this information in the CEM, this information can be contained in a
hyperlink to a website which is “clearly and prominently set out” or by an
alternative that is described of “equivalent efficiency”.
Furthermore, the CRTC Regulations state that the
unsubscribe mechanism contained in the CEM which is required by the Anti-spam
Legislation to allow the receiver to withdraw their express or implied consent
must be able to be performed in no more than two clicks or another method of
“equivalent efficiency.” Although what is meant by “equivalent efficiency” is
somewhat unclear, the required two clicks makes it clear that the unsubscribe
mechanism should be relatively straightforward.
Lastly, in addition to the information prescribed to be
contained in a CEM, the CRTC Regulations set out the information to be
contained in a message seeking consent under section 10(1) and (3) of the
Anti-Spam regulations. In this regard, in addition to the information set out
above under (a) and (d), an additional requirement is prescribed by the
regulations for CEMs seeking consent:
(e) a statement indicating that the
person whose consent is sought can withdraw their consent by using any contact
information referred to in paragraph (d).
2. Industry Canada Regulations
On July 9, 2011, Industry Canada
released draft regulations which were published in the Canada Gazette, Part I,
for a 60-day consultation period (the “IC Regulations”).
Whereas the CRTC Regulations outlined
the form and content of a CEM for compliance purposes with the Anti-spam
Legislation, the IC Regulations add clarity to certain terms contained in the
Anti-spam Legislation for definitional purposes.
As such, section 6(5)(a) of the Anti-spam
Legislation provides an exemption to the general prohibition against the
sending of a commercial electronic message where it is sent on behalf of an
individual to another individual with whom they have a personal or family
relationship.
As such, the IC Regulations define a
“family relationship” as follows:
(i) a blood relationship, if one
individual is the child or other descendant of the other individual, the parent
or grandparent of the other individual, the brother or sister of the other
individual or of collateral descent from the other individual’s grandparent,
(ii) marriage, if one individual is
married to the other individual or to an individual connected by a blood
relationship to that other individual,
(iii) a common-law partnership, if one
individual is in a common-law partnership with the other individual or with an
individual who is connected by a blood relationship to that other individual;
and
(iv) adoption, if one individual has
been adopted, either legally or in fact, as the child of the other individual
or as the child of an individual who is connected by a blood relationship to
that other individual
In addition, a “personal relationship” is defined as a
relationship: “other than in relation to a commercial activity, between an
individual who sends the message and the individual to whom the message is
sent, if they have had an in-person meeting and, within the previous two years,
a two-way communication.”
Section 10(2)(b) of the Anti-spam Legislation states that
a person who is seeking consent from a person whose identity is not known, the
email or message seeking the consent must comply with the regulations. For this
purpose, the IC Regulations require that any CEM sent to the person from whom
the consent was obtained contains the identification of the person who obtained
the consent as well as the option to unsubscribe. However, if that unsubscribe
option is utilized, the IC Regulations also require that the person who
obtained the consent must notify the sender of the CEM that the consent has
been withdrawn “without delay” and that the provisions within the Anti-spam
Legislation concerning the withdrawal of consent are followed.
Lastly, the IC Regulations provide greater clarity to the
term “member” in a club, association or voluntary organization. As such,
“membership” is defined as the, “status of having been accepted as a member of
a club, association or voluntary organization in accordance with the membership
requirements of the club, association or organization.” It is assumed that this
is referring the membership requirements contained in the club, association or
voluntary organization’s by-laws or other means of determining membership by
that organization. The terms club, association or voluntary organization are
further defined as being a, “non-profit organization that is organized and
operated exclusively for social welfare, civic improvement, pleasure or
recreation or for any purpose other than profit, if no part of its income is
payable to, or otherwise available for the personal benefit of any proprietor,
member or shareholder of that organization unless the proprietor, member or
shareholder is an organization the primary purpose of which is the promotion of
amateur athletics in Canada.”
C. NEW INDUSTRY CANADA WEBSITE
The draft regulations, as well as other helpful
information published by Industry Canada are also available on a website which
recently was announced by Industry Canada at http://fightspam.gc.ca.
Industry Canada has stated that the “Fight Spam” website will include more
detailed information once the consultation process concerning the regulations
has concluded. In addition, the website also contains a link to a Spam
Reporting Centre. At the present time, the Spam Reporting Centre is not
operational, but the website states that it will be responsible for identifying
and analyzing trends in spam and other threats to electronic commerce.
D. CONCLUSION
It should be noted that, in addition to
the sending of a CEM, the Anti-spam Legislation also applies to anyone that is
involved with the alteration of transmission data, or produces or installs
computer programs, although such activity is not usually carried out by
charities. As such, although this Charity Law Bulletin has provided a
brief summary of the provisions pertinent to CEMs contained in the Anti-Spam
Legislation and Electronic Commerce Protection Regulations, a fuller review of
the two documents should be done where a charity is conducting either of the
said activities. Although the prediction contained in the press release by the
Minister of Industry indicates that charities and non-profit organizations that
send CEMs will likely have until 2012 to comply with the Anti-Spam Legislation,
it is recommended that such organizations review the statute and Electronic
Commerce Protection Regulations to begin planning in advance for their coming
into force.
