Canada’s anti–spam legislation is one of the most restrictive in the world. Businesses and individuals who communicate on the web via email should all be aware of this legislation so as to avoid penalties of up to $1,000,000 per offense for individuals (yes, you read that right!) And $10,000,000 for businesses (yep, you read that right again). As a web agency based in Montreal, we have our own concerns regarding this law, so we will therefore summarize the main points to understand so our visitors can be better informed on what they can and cannot do in terms of email communication.
What does Canadian anti-spam law prohibit?
➤ Sending commercial electronic messages (CEMs) without the recipient’s consent. This includes text messages, emails, and private messages on social network accounts.
➤ Altering the transmission data of an email message to ensure that the message is delivered to a different person without their consent (for the few that know how to do it).
➤ Installing computer programs on someone’s computer without their consent.
➤ Using false or misleading information on the Internet to promote your products or services. Will this be the end of airplane tickets that bait you with a $400 price that turns into $550 one you click on it?
➤ Collecting personal information by accessing a computer system in a manner that goes against Canadian federal laws.
➤ Collecting email addresses without permission.
What is a commercial electronic message (CEM)?
To know if your message is a CEM, you should ask yourself: Is one of the goals of the message to encourage the recipient to participate in a commercial activity?
Here are some examples of situations where your message can be considered a CEM:
➤ Anything that promotes the selling, bartering or leasing of products, goods, or services.
➤ Anything that offers business, investment or gaming opportunities.
Does the law prohibit the sending of marketing messages?
No, this law “only” requires companies/individuals to comply with three requirements when sending a commercial email message:
1) The recipient of the email must have given their consent (and you must be able to prove it).
2) The message issuer must clearly provide information that identifies them.
3) The sender must provide the recipient with an opportunity to opt out of such emails.
What constitutes an electronic address?
According to the Canadian anti–spam legislation, an electronic address includes email addresses such as gmail, hotmail, yahoo etc., cell phone numbers, instant messaging accounts (Facebook, Skype etc.) or any similar accounts.
However, posting on someone’s Facebook wall is not covered by this law, for example. On the other hand, messages sent to users via the Facebook or LinkedIn messaging systems are considered to be sending messages to “electronic addresses”. Therefore, if you respect this law to the letter, it is better to publicly announce on your Facebook wall that you’re selling your car rather than sending private messages to your contacts (especially if you do not know them very well). In addition, you must keep a personal link between all the people to whom you send a commercial message.
What is a personal link?
The existence of a personal link requires that the two people who exchange messages know each other by their real name (as opposed to the nicknames or pseudonyms used on some websites). Using the same social network does not demonstrate the personal link between two people. The same goes for using the “Like” buttons on social networks, voting for or against a message, accepting someone as a “friend” or following people on Twitter/Google+.
The definition of consent under the CASL
The way in which you get consent from your recipients should not be automatically assumed as proper consent (yes, it’s a little odd). Clearly, silence or lack of action on the part of your recipient cannot be interpreted as consent. For example, a box checked in advance is not acceptable because it assumes by default that the person has given consent.
The purpose of this law is to clean the web of unwanted messages, which often have the effect of damaging the user experience of Internet surfers. While it is extremely harsh (maybe even a little too harsh for that matter), it does not authorize any fault on the part of the advertisers. The purpose of this article is to make you aware of this law so that you take the necessary precautions when sending your email messages. If you wish to read the official legislation text, click here.
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