Banka: What's all that spam?

Growing up we used to watch Monty Python on TV and every time I hear the word spam I remember their comedy bit on Spam.

Now we have some anti-spam legislation and most of us will be breathing a sigh of relief because that has already cut down on the massive amounts of spam emails that we have been receiving.  The original process started back in 2004 when the government undertook a study to determine how much spam was being distributed through the internet.  This study resulted in a report completed in May of 2005 recommending legislation to control the spammers.

The legislation was tabled on May 25, 2010 and received Royal Assent on December 15, 2010.  At this time the Government of Canada began working on the legislation and associated regulations.  To give small businesses enough time to become aware and compliant with the regulations, the actual effective date for most of the regulations was July 1, 2014.   Computer programs have until January 15, 2015 to make their programs compliant and the actual ability to take action against spammers (called Private Right of Action) does not come into effect until July 1, 2017.

This legislation was enacted to encourage and promote the growth and acceptance of electronic commerce by ensuring confidence and trust in the on-line marketplace.  The legislation is expected to deter spam and other damaging and deceptive electronic threats such as identity theft, phishing and spyware from occurring in Canada and to help drive spammers out of Canada over a three year period.  Please note that the CRA would like to use electronic commerce to deposit your refund, GST and CCTB directly into your bank account beginning as soon as possible.

The legislation involves that several agencies work together to combat the problem and gives these agencies the authority to share information and evidence with their international counterparts.  The Canadian agencies are the Competition Bureau, the Office of the Privacy Commissioner, and the Canadian Radio-television and Telecommunications Commission.

There will be some exceptions to the act such as family or a personal relationship.  Both these are defined in the act.  Family being defined as a spousal and/or child relationship and personal being any two people who have had two-way communications before the spam item occurred.  Other exceptions are emails within a business organization or sent between business organizations that already have a relationship.  Banking sites, legal items, registered charities and responses to complaints, inquiries and requests and any commercial emails sent to organizations that are located in areas outside Canada that have their own anti-spam legislation are also exempt.

If you are a member of a non-business organization, that business would be exempt from sending you emails.  If the emails being sent to you have a subscribe/unsubscribe attached to them, those emails are exempt from the legislation because they are giving you the opportunity to unsubscribe from the receipt of those emails.

There is a section in the legislation that focuses on referrals by a third party and also sharing contacts with third parties.  If you are referred to a site by someone that is a client of the site, that would be an exempt situation.  If you are part of a client base for a business, that business can seek your consent to allow another business to send you commercial electronic messages (CEM) but they must also allow you to unsubscribe as well.

What is the definition of a commercial electronic message (CEM)?  If a message’s purpose or one of its purposes is to encourage participation in a commercial activity, then it is considered a CEM.  However, if there is a pre-existing commercial relationship, might hyperlink to a website, that message may not be considered as a CEM under the act.  If none of the message’s content is to encourage the recipient in additional commercial activity, but provides additional information or clarification involving a commercial activity already underway, then it would not be considered a CEM.  Included in this definition are surveys, polling, newsletters, messages soliciting charitable donations, political contributions, or other political activities that do not encourage participation in a commercial activity.

So if the purpose is to advertise, promote, market or otherwise offer a product, good or service, business or gaming opportunity or interest in land, the message is clearly a CEM and falls under the legislation.

How is the act going to be enforced?  There will be regulatory measures such as administrative penalties and through a private right of action.

Do you have further questions?  Both the CRTC and Industry Canada will be issuing new Frequently Asked Questions and Responses on the CRTC and websites.


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