About the Author

  • Silvia de Sousa

    Silvia’s practice is concentrated in the area of business law with an emphasis on intellectual property law and technology law. Silvia is a trademark agent in Winnipeg, Manitoba.

    (204) 934-2592

The Federal Government passed a new “anti-spam” Act in December 2010. If you are wondering why your inbox is still full of unwanted messages, it is because the Act is not yet in force. Since passing the Act, the Federal Government has been busy reviewing public comment on the associated regulations, which has led to revisions to the legislation. However, the Act and regulations are anticipated to finally come into force this summer. So, what do you need to know?

The Act targets more than just spam, including the non-consensual installation of computer programs and alteration of computer data (think malware and viruses). For businesses, however, the provisions in the Act that will have the most impact are those dealing with sending “commercial electronic messages”. Under the Act, if an exception does not apply, the sender of a commercial electronic message will have to ensure that he or she:

  1. has obtained the consent of the recipient to send the message;
  2. has included information that identifies the sender; and
  3. has included information that enables the recipient to withdraw consent. Significantly, a commercial electronic message sent to a recipient to obtain consent to the receipt of a commercial electronic message is itself an electronic commercial message according to the Act. Therefore, businesses should avoid using commercial electronic messages to obtain initial consent from new customers to receiving commercial electronic messages once the Act is in force.

The CRTC has been given the responsibility of enforcing the Act’s anti-spam provisions, and stiff monetary penalties are available. The maximum penalty is $1 million per violation in the case of an individual and $10 million per violation for entities, such as corporations. In light of the possible consequences for violating the Act, businesses that send commercial electronic messages should ensure that they are prepared to comply with the Act once it comes into force. It is important to note that the coming into force date will be the date for compliance with the Act. More information about the Act and regulations can be found at the Federal Government website, fightspam.gc.ca.

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. The views expressed are solely the authors’ and should not be attributed to any other party, including Thompson Dorfman Sweatman LLP (TDS), its affiliate companies or its clients. The authors make no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this article. The authors are not able to provide free legal advice. If you are seeking advice on specific matters, please contact Keith LaBossiere, CEO & Managing Partner at kdl@tdslaw.com, or 204.934.2587. Please be aware that any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

While care is taken to ensure the accuracy for the purposes stated, before relying upon these articles, you should seek and be guided by legal advice based on your specific circumstances. We would be pleased to provide you with our assistance on any of the issues raised in these articles.