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Bill C-28: Canada’s Anti-Spam Legislation Coming Soon to A Court near You

  

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Spam – it’s annoying, it fills up your inbox.  It can be offensive and even harmful to your computer, it just plain sucks.  I attended an Internet Hot Topic session earlier this year and the speaker gave spam the description as being similar to pornography using a US Supreme Court Justice’s quote regarding their take on spam: “I can’t define it, but I know it when I see it.”   We have all received emails from senders that we are not familiar with for “Viagra” or emails letting you know that you are the winner of a million dollar prize, but in order to claim it you must first send the company $10, 000 – sounds like a great deal doesn’t it?!  These are the usual suspects and for the most part, are unsolicited.  Nowadays, users are more aware of what spam is and email providers like Gmail, Hotmail and Yahoo have developed their own spam filters to assist their users in stopping spam from entering their inbox.  Despite users becoming more aware of the problems with spam, there is still a chance that a recipient may innocently open a spam email if they think that the email is from a person they know.  Responding to these emails, attempting to purchase items from an unqualified source or clicking on a link that may infect your computer with malware can all create BIG TIME headaches for you.  The Canadian Government proposed new legislation in May of 2010, Bill C-28 - Fighting Internet and Wireless Spam Act (FISA) and is the Government’s intent to “deter the most damaging and deceptive forms of spam from occurring in Canada.”  FISA can be seen as a deterrent so you are not only relying on your keen eye for spam or depending on your email provider’s filter mechanism.

Not long ago, Canada was the only G8 country without anti-spam legislation.  On December 15, 2010, FISA was enacted and is commonly referred to as Canada’s Anti-Spam Law or Canada’s Online Protection Legislation.  Spam is more than unsolicited commercial messages, which is what the regulations will stipulate, but can also become a path for other online threats (identity theft, phishing, malware, false/misleading online representation in the marketplace) that can affect the individual, business (spoofing a company’s website) and network providers (congested networks).  One key point is that the Government of Canada has defined spam as “any electronic commercial message sent without the express consent of the recipient(s).”  FISA has the potential to have a significant impact on the way businesses handle their electronic communications as the onus will be on the sender to create and maintain records proving consent.  This “opt-in” legislation sees that the recipient must give consent to electronic messages which includes text (cellphone spam), email, image or voice messages.  The sender must have expressed consent.  Some of the ways that the sender can prove consent is by possessing the recipient’s business card or email or through communication that was sent by the recipient through the sender’s website.  All proof must be relevant to the business. There are cases where a legitimate business may use bulk emails to reach their customers and there are provisions made in the legislation that implied consent will hold true for delivery of electronic messages for two years after the relationship was established, even if the relationship was subsequently terminated.  Please keep in mind that spam is not just bulk email, but also can be applied to a single solicitation for commercial gain. 

So when will Bill C-28 actually see the light of day?  Here is the timetable that was proposed by the Canadian Federal Government that will see this legislation become law by the end of the year:

The time to start thinking about current business policies and procedures for electronic communication (email, text, Twitter, Facebook, instant messaging, etc.) is now, especially if those means are used to reach out to current or prospective customers to elicit some form of commercial gain.  It is important to have a proactive strategy before FISA is enacted to ensure that when it does, your business is already in compliance with the law.  For more information on Bill C-28 please visit the Government of Canada website.