DECEMBER 2010

Canada’s New Unsolicited Electronic Message Law

Written in concert with Roland Hung of Gowlings

Canada recently passed a new law regarding the sending of unsolicted electronic messages.   While the law has not yet been signed into law, businesses should not wait and, instead, proactively evaluate their current practices to ensure compliance with this critical legislation. 

The law covers all “commercial electronic messages,” which includes email, unsolicited text messages, instant messaging, and cellphone calls, and prohibits the sending, or causing or permitting to be sent. of a “commercial electronic message” unless: (1) the recipient has expressed or implied consented to receive the message; and (2) the message discloses the actual and beneficial sender of the message, the sender’s contact information, and an effective and timely unsubscribe mechanism.  There are several exceptions to this prohibition, much of which are similar to the definition of “transactional and relationship messages” under the United States’ CAN SPAM law.

Consent may be implied in limited circumstances, including: (1) the person who sends the message has an “existing business relationship” or an “existing non-business relationship” with the person to whom it is sent; (2) the recipient has conspicuously published their electronic address, this publication is not accompanied by a statement that they do not wish to receive unsolicited messages, and the message is relevant to their business, role, functions or duties in a business or official capacity; or (3) the recipient has disclosed to the sender the electronic address without indicating a wish not to receive unsolicited messages, and the message is relevant to their business, role, functions or duties in a business or official capacity.

The law provides administrative monetary penalties up to $1 million for an individual and up to $10 million for an organization for violations. The law also creates a private right of action that would allow consumers and businesses to take civil action against anyone who violates the law, including statutory damages of $200 for each violation of unsolicited electronic message provision of the Act, up to a maximum of $1 million each day.  Corporate officers and directors can be held personally liable for corporate violations, and employers can be held liable for violations committed by their employees or agents acting within the scope of their employment or authority.

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