Bill C-28 – Canada’s Anti-Spam Law (Part 2) – Consent

In the first part of my series on Bill C-28, Canada’s new Anti-Spam Law, I talked about the Anti-Spam law itself and briefly touched on penalties. Today I will be discussing consent.

Most people nowadays put people on their email mailing list and provide a method for them to opt-out, usually in the form of an unsubscribe link. With the new Anti-Spam law this will no longer be an option for getting people on your list. There are two types of consent, implied and express. Implied consent was just described above, giving the user the ability to opt-out. Express consent is when people must opt-in, which is mandatory in most cases with this new law. Furthermore, when you ask someone to opt-in, you must clearly state the purposes why you are asking them to opt-in or “sign-up” on your list.

The majority of the time as of July 1st, people will have to opt-in on your email mailing list, but there are a few instances where consent is already implied. They are:

1. Commercial electronic messages where the parties have an existing business or non-business relationship that has been active in the last 2 years;
2. Commercial electronic messages where the sender has received an inquiry or application within the last 6 months from the recipient in respect of a potential transaction or other defined business or non-business opportunity;
3. Commercial electronic messages where the recipient has provided or published his or her electronic address without any restriction, and the message relates to the person’s job or business¹

Now that you know the difference between implied and express consent, there are a couple other important facts that need to be addressed. First, when someone opts into your mailing list, you must have proof of the person’s name, email address, date and time they opted-in. This is necessary in case someone were to file a complaint with the CRTC against you. Second, most email lists today conform with the Personal Information Protection and Electronic Documents Act (“PIPEDA”), but they do not conform to the new Anti-spam law due to lack of consent. Before July 1st you must get everyone on your list to opt-in and have proof they opted-in, not you adding them to your list.

This is a lot of critical information to absorb, but very necessary to know and understand. I can see a lot of people and businesses after July 1st not knowing this new law exists and will still be doing their email mailing list creation the wrong way.

Up next: PART 3 – Exemptions and Non-Profits

1 Sharon E. Groom, McMillan LLP