Set to come into effect in 2014, Bill 28 will make it illegal to send commercial electronic messages (CEMs) to recipients without their expressed or implied consent. Companies that fail to comply with this federal legislation, known as the Fighting Internet and Wireless Spam Act (FISA), could face penalties of up to $10 million per violation.
FISA has major implications for how every business in Canada communicates with clients and potential clients. There are three main activities that are covered under the new anti-spam legislation.
- Sending CEMs: These are defined as any electronic communication that encourages participation in a commercial activity, regardless of whether there is an expectation of profit. The new and broad definition of “electronic message” includes a message sent over any means of telecommunication. So, aside from email or instant messaging on mobile devices, this includes text, sound, voice or image. It therefore covers voice mail messages, webcam messages and the electronic exchange of pictures or graphic files.
- Altering transmission data in an electronic message in the course of a commercial activity: An example is when an electronic message is sent to a destination that is different from what the sender intended.
- Installing a computer program on another person’s computer in the course of a commercial activity: Cookies, HTML code and Java scripts are exempt. Upgrades and version updates to software are also OK, so long as consent was obtained for the first software installation.
Because each business is different, the anti-spam legislation should be thoroughly reviewed. Here are some highlights to help you get started.
- Express consent must be received before a business can take part in any of the above three activities, namely sending CEMs, altering transmission of data in a CEM or installing a computer program on someone’s computer. Consent must be obtained separately for each activity, i.e., the customer must be able to agree to one without having to agree to any or all of the others.
- When using “toggling” to obtain consent on a website, a pre-checked box giving consent to subscribe to communications is not acceptable. The checkbox must be unchecked by default and the consumer must check it in order to give consent.
- Implied consent is also acceptable. Implied consent is where an existing business relationship with a client or where the electronic messages are relevant to the recipient’s business, role, function or duties, or the electronic address has been conspicuously published/disclosed (for example, on a public website), without a statement that the person does not wish to receive unsolicited commercial electronic messages.
- Because the onus will be on the message sender to prove that consent was received, it will be necessary to record the date, time, purpose and manner of that consent and store that information in a database. Voice recordings of oral consent (through a call centre, for example) are also valid.
- The message sender (and its affiliates if the message is sent on behalf of multiple parties) must be clearly identified in all messages.
- The mailing address of the sender(s) must also be included in each message, including in the request for consent.
- Each CEM must include an “unsubscribe” mechanism that is shown “clearly and prominently” and can be “readily performed.” This means it must be accessible without difficulty or delay, and that it’s simple, quick and easy for the consumer to use. An example is a link in an email to a web page where a user can unsubscribe from receiving all or some types of CEMs from the sender. For short message service (SMS) or text messages, the user may choose between replying to the text message with the word “stop” or “unsubscribe,” or click a link to a web page to unsubscribe from all or some types of CEMs.
This column is reposted with the permission of Business in Vancouver, which posted it originally on www.biv.com.
Cybele Negris is president and co-founder of Vancouver-based Webnames.ca Inc., Canada’s original .ca registrar and one of the country’s leading providers of web hosting and other internet solutions. She has been on the PROFIT/Chatelaine W100 ranking of Canada’s Top Female Entrepreneurs for the past nine years.
More columns by Cybele Negris