Shortly before the holidays, Parliament assented to An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities [...] which will regulate the transmission of unsolicited commercial electronic messages, also known as spam. This law, which should come into force by decree in the next few months, will prohibit the transmission to an electronic address (including by way of instant messaging) of a commercial electronic message unless the person to whom the message is sent has consented to receiving it, whether expressly or implicitly, or the message conforms to the prescribed requirements with respect to its form. These requirements, which remain to be specified, may cover the inclusion of prescribed information that identifies the person who sent the message, enables the person receiving the message to communicate directly with the sender and includes a free mechanism to unsubscribe.

The Act will provide for several exceptions to this prohibition, including:

  • messages sent to individuals with whom the sender has a personal or family relationship;
  • enquiries or applications related to the activity of the recipient or the transmission of a quote or estimate requested by the recipient;
  • messages relating to warranty, product recall or safety information;
  • messages providing factual information about ongoing subscriptions;
  • messages transmitted for the purposes specified in the regulations.

Consent will only be implied if:

  • the sender and the recipient have an existing business or non-business relationship (a business relationship will include the purchase or lease of products or services by the recipient from the sender within the two year period immediately preceding the transmission of the message); or
  • the recipient has conspicuously published or disclosed its electronic address without indicating a wish not to receive unsolicited messages.

The following specifications of the Act are also of note:

  • The Act will apply only in cases where the computer system used to send or access the electronic message is situated in Canada;
  • The Act will also prohibit the installation of programs on a person's computer system without his/her consent;
  • The Act will grant the authorities a wide array of enquiry powers, including with respect to preservation of data, production of documents and inspection.

The maximum penalty for a violation of the law will be $1 million in the case of an individual and $10 million in the case of a corporation. Also, the officers, directors, agents and mandataries of a corporation who directed, authorized or consented to the commission of a violation of the law may be liable thereunder unless they establish that they exercised due diligence to prevent the commission of the violation.

It is also noteworthy that the Act will create a private right of action in favour of any person affected by a violation of the sections of the Act dealing with the transmittal of unsolicited electronic messages or the installation of programs on the computer.  The court may order the offender to pay to the applicant $200 for each violation, not exceeding $1 million for each day, depending on the type of violation. Unless the court decides otherwise, no person will be entitled to bring an application later than three years after the day on which the violation became known.

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