Bill C-28 – Canada’s Anti-Spam Law (Part 3) – Exemptions

So far in parts one and two of my series on Bill C-28, which becomes law on July 1st, 2014, I have discussed the new law as well as consent under the law. Now, I will be discussing the various exemptions under the upcoming new law. Just to refresh everyone, a commercial electronic message qualifies as one if its primary purpose encourages participation in a commercial activity. Although lengthy, here is a list of exemptions under the upcoming new law.

• commercial electronic messages within a business sent by an employee, representative, contractor or franchisee of the organization and that concern the activities of the organization;
• commercial electronic messages between businesses that have an ongoing business relationship, and that are sent by employees, representatives, contractors or franchisees of the organizations concerning the activities of the organizations or the person’s role;
• commercial electronic messages from friends or family;
• commercial electronic messages to a business where it is an inquiry or application related to that business;
• commercial electronic messages from a business responding to inquiries, requests, complaints or other solicitations;
• commercial electronic messages that are sent to satisfy a legal or juridical obligation;
• commercial electronic messages sent on an electronic messaging service where consent (implied or express) has been received and the unsubscribe mechanism is on the user interface;
• commercial electronic messages sent by a registered charity where the primary purpose of the message is fundraising;
• commercial electronic messages sent by a political party/organization/candidate where the primary purpose is soliciting a contribution;
• in addition, there is a one-time exemption for a commercial electronic message sent to someone to whom the sender has been referred by a friend or business relation of the recipient, although such a communication still has to comply with the content requirements.1

Non-profits have a challenge and must distinguish commercial and non-commercial messages. Non-profits are exempt from the law if their commercial message seeks donations or contributions. Any other commercial electronic message or non-commercial electronic message not seeking donations or contributions then falls under consent rules like every other person or business.

For the most part, in order to make sure you are in compliance as of July 1st, make sure people opt-in to your mailing list. If you definitely know you fall into one of the exemptions above, make sure your commercial electronic message is clear and does not allow for another interpretation that can be considered outside the exemption qualifications.

Up next: PART 4 – Other Important Facts

1 Sharon E. Groom, McMillan LLP