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Canada's Anti-Spam Laws - On the Backs of Canadian Businesses ?

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Canada's new "Anti-Spam" Legislation will come into effect on July 1, 2014 (for simplicity, Canada's "ASL").

While a step forward for Canada in this legislative area, a more pessimistic view of it might position it as largely ineffectual when it comes to removing spam from my inbox and your inbox (because it does not contain any real measures aimed at enforcement on foreign owned computer systems or internet providers where much of Canadian spam actually originates), and the spam that it does effectively remove (Canadian-based spam) seems to be at a huge cost to legitimate Canadian businesses that seek to market their legitimate products and services to Canadians in the digital market-place).

Scope of the Legislation – The first counter-intuitive part of Canada's ASL is that it has an incredibily broad scope, literally forcing Canadian businesses to obtain the express consent of an email recipients before allowing them to send an email to that recipient (think about that for a minute), and then requiring specific form and content requirements.  While there are some "implied consent" provisions (where there is an "existing business relationship" or an "existing non-business relationship" between the sender and the recipient), the scope of the ASL appears to make the "cold call" a thing of the past -- at least in the email context.

The ASL Police will be a combination of the Canadian Radio-Television and Telecommunications Commission, the Competition Bureau and the Office of the Privacy Commissioner.  (Why let one government department administer stuff like this when you can get three separate government departments involved !)

While businesses might wish to keep their heads down when it comes to the new requirements in the ASL, the government has thought about that too - imposing huge possible fines for non-compliance.  For example, individuals found to be in violation of the ASL rules can be subjected to an administrative monetary penalties of up to $1 million, while corporations and other entities can face fines of up to $10 million.  Individual officers and directors (and agents or mandataries) of corporate violators can be liable for individual fines as well if participating, directing, authorizing, assenting to or acquiesc in the violation.  Lastly violators may be liable for private rights of action by persons who allege they have been affected by a contravention of ASL (i.e., violators can be sued), although the private action provisions will not come into force until July 1, 2017.

Businesses need to begin taking Canada ASL seriously, and make compliance with these new rules part of their everyday business environment !


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