February 25, 2011


Bill C28 Discussed

We’ve been watching Bill C28 creep through parliament and for the most part I would encourage clients to consider it a good thing.  Not only will it bring clarity to the practice of newsletter and marketing communications, the hope is that in time, email as a channel will become more effective as less spam ends up in customers’ in boxes. Furthermore, clients adhering to email best practices ( PIPEDA or CAN-SPAM ) will already by in compliance with the new law.  As for the bill itself …

Bill C-28 targets the sending of what we would typically call spam, or unwanted commercial email, as well as spyware and phishing. It also gives a private right of action, which allows anyone to take civil action against violators. Finally, under FISA, the Canadian Radio-television and Telecommunications Commission (CRTC) and Competition Bureau would be able to impose monetary penalties of $750,000 to $1 million per violation for individuals, and $10 million to $15 million for businesses.  < http://www.lawsof.com/page/New-Anti-Spam-Bill-in-Canada.html >

For those not following the debate, the bill, tagged as the Fighting Internet and Wireless Spam Act, has been criticized as being overly broad in that the definition of what constitutes an unwanted commercial communication could be interpreted to encompass what might be otherwise considered as normal business practice (single emails for instance).

When passed into law, electronic messages, more narrowly defined as “a message sent by any means of telecommunication, including a text, sound, voice or image message” will be subject to explicit and demonstrable consent provisions, or clearly defined rules governing pre-existing relationships.

This has lead to fear that a business can face prosecution or civil action for what would otherwise seem an innocuous communique (an unsolicited letter of introduction by a sales agent for instance).  It`s  important to note that it`s a fear NOT shared by the industry, who have confidence that by final reading the ambiguities will be cleansed.

In the meantime, I`ve attached below the draft clauses governing to whom commercial emails can be sent safely.  Any questions or clarifications can be addressed to myself at the contact info below.

Existing Business Relationship

(10) In subsection (9), “existing business relationship” means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from

(a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons;

(b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;

(c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;

(d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or

(e) an inquiry or application, within the six-month period immediately before the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).

Existing Non-Business Relationship

13) In subsection (9), “existing non-business relationship” means a non-business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from

(a) a donation or gift made by the person to whom the message is sent to any of those other persons within the two-year period immediately before the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization, or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office;

(b) volunteer work performed by the person to whom the message is sent for any of those other persons, or attendance at a meeting organized by that other person, within the two-year period immediately before the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office; or

(c) membership, as defined in the regulations, by the person to whom the message is sent, in any of those other persons, within the two-year period immediately before the day on which the message was sent, where that other person is a club, association or voluntary organization, as defined in the regulations.

Trevor Paetkau
Direct of Client Services
trevor@slingcreative.ca

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