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Canada’s New Anti-Spam Legislation – Get Ready, Get Set …
March 14th, 2011

Bill C-28 received Royal Assent late last year, and will take effect this Fall. The Association of Canadian Advertisers asked legal counsel Margot Patterson of Fraser Milner Casgrain LLP to review what this will mean for marketers.

FMC_LAWThe Fighting Internet and Wireless Spam Act was enacted in December 2010, and is slated to enter into force this fall. A part of Canada’s Strategy for the Digital Economy, FISA is intended to promote e-commerce by deterring spam, identity theft, phishing, spyware, viruses, and botnets, as well as misleading commercial representations online. FISA creates new offences, enforcement mechanisms and penalties to address these online threats.

Canada is the last of the G-8 countries to introduce an over-arching legislative framework to address spam, which continues to represent approximately 80% of all global e-mail traffic.

Canada has distinguished itself, however, in making its legislation tough. FISA’s consent standards are higher than those in the U.S. CAN-SPAM legislation. Moreover, FISA’s significant penalties have led some to nickname it “Canada’s $10 million anti-spam law.”

Application
FISA applies to “electronic messages” and “electronic addresses” applying broadly to any means of telecommunication, including text, sound, voice, or image, via e-mail, instant messaging, telephone or “any similar account”, which could include Facebook and Twitter postings.

Impact for online business communications
This new legislation will affect how companies do business online in Canada. Proactive businesses can use the lead time prior to FISA’s entry into force as a transition period to prepare for compliance. For example: 

  • All organizations that send commercial email to clients or prospects will need to review their online marketing practices, to ensure they comply with new consent, disclosure, and “unsubscribe” requirements.
  • Advertisers and marketers will need to familiarize themselves with how the existing misleading and deceptive representations laws will apply online.

Next steps for FISA
Regulations to be enacted under FISA will add more detailed requirements. FISA and its regulations are anticipated to come into force in the fall of 2011.

Next steps for businesses
1. Conduct an audit of online communications with clients, prospects, and third parties, including: 

  • bulk email, automated messages, periodic client newsletters and updates

2. Develop a FISA checklist, including:

  • consent, unsubscribe, and disclosure requirements, and available exceptions

3. Develop a FISA Compliance Policy that:

  • addresses applicable legal provisions (FISA and regulations, Competition Act, PIPEDA, Telecommunications Act);
  • meets the prescribed requirements for forms and procedures that document consent;
  • covers the unsubscribe requirements and timeframes;
  • updates personal information collection practices, client service processes, and the organization’s Privacy Policy and Website Terms of Use; and
  • includes information or training for employees, management and Board of Directors.

A more detailed background on FISA is available here.

Margot Patterson is a Media lawyer at Fraser Milner Casgrain LLP in Ottawa. Previously, Margot was the General Counsel and Vice-President Legal Affairs for the Canadian Association of Broadcasters. She can be reached at margot.patterson@fmc-law.com or (613) 783-9693.

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