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Sending unsolicited commercial email: the days of the Wild West are over

November 8th, 2011

Receiving a large volume of unsolicited e-mail promoting various products and services especially from businesses you have never heard of or done business with (spam) impairs the efficiency of electronic communication, imposes additional costs on businesses, causes a loss in productivity, and can compromise the protection of privacy and the security of confidential information. It is in this context that was adopted 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, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act, and the Telecommunications Act (hereinafter the Anti-Spam Act). Although certain provisions of this act are presently in force, its most important provisions discussed below are expected to come into force further to a government order sometime in the spring of 2012.

It has become common practice for many companies, regardless of their area of business, to send unsolicited commercial e-mail, by mass mailing or individual messages, to announce a promotion, solicit offers, promote a new product or service, or send invitations to almost any kind of event, to name only these. The Anti-Spam Act specifically addresses this practice, and companies would do well to question their actions in this regard so as to avoid a criminal offence or a civil action. Below is a summary of certain requirements to be met when sending unsolicited commercial electronic messages. If your business is preparing to send out mass mailings or to solicit targeted prospective new customers by sending e-mail or other types of electronic messages, a more in-depth examination of what you are doing would be warranted.

To whom can you send an unsolicited e-mail?

As a general rule, the Anti-Spam Act allows the sending a commercial electronic message only to a person from whom the business has obtained express consent or implied consent to receive commercial electronic messages. These two types of consent are summarized below.

Express consent

In order to obtain express consent to send unsolicited electronic messages, it is necessary to clearly and simply set out the following information:

  • the purpose or purposes for which the consent is being sought (for example: “Would you like to receive our monthly advertising newsletter?”); and
  • the prescribed information identifying the person seeking the consent. Because no regulation prescribing any specific information has yet been adopted, if you provide only the full name of the business doing the soliciting, it should be sufficient, but it is foreseeable that the government will eventually adopt regulations requiring that more information be given (information such as, for example, the address and telephone number). It would therefore be recommended to do a regular periodic follow-up to determine whether such a regulation has been adopted and to act accordingly.

Implied consent

Express consent may be difficult to obtain or embarrassing to request. Thankfully, the scope of implied consent as defined in the Anti-Spam Act is relatively broad although strictly circumscribed. Three situations of “implied consent” are of particular interest to businesses wanting to send commercial electronic messages.

The first situation is sending a commercial electronic message to a person with whom you have an existing business relationship, that is to say, including:

  • any person who has purchased or leased a product or service during the past two years (hence essentially all of the clients a business has had over the past two years); or
  • any person who has made an inquiry, including a request for information regarding a product or service for sale or for lease, during the past six months (essentially any persons who have shown themselves to be a prospective customer over the past six months).

The second situation leading to the conclusion that there is an implied consent is where the person has conspicuously published his or her electronic address (but without specifying that he or she does not wish to receive unsolicited commercial electronic messages at the electronic address) and to whom you have sent a the message that is relevant to that person’s business, role, functions, duties, or official capacity within a business.

The third situation is similar to the previous one, but involves persons who have disclosed their electronic address to the person sending the unsolicited email (still without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address). This would, for example, include persons who gave you their business card with their electronic address on it. But again, any unsolicited commercial electronic message to be sent to such persons must be relevant to their business, role, functions, duties, or official capacity within the business.

What must the unsolicited e-mail contain?

The Anti-Spam Act also specifies what must necessarily be contained in an unsolicited commercial electronic message. Such a message must contain the following points:

  • identification of the person (the individual or the company) who or that sent the message (the same as for the identification requirement when seeking consent, the exact nature of the information to be provided could be defined by regulation at a later date);
  • information allowing the recipient to readily contact the person sending the message, for example, the electronic address and telephone number. This contact information must be valid for a minimum of 60 days after the message has been sent, and;
  • an unsubscribe mechanism.

With regard to this last point, the message must enable the persons to whom the commercial electronic message was sent to indicate, at no cost to them, the wish to no longer receive any commercial electronic messages. Typically, an unsolicited commercial electronic message sent in a mass mailing will include a reference such as “I no longer want to receive your monthly advertising newsletter,” on which one can click to be deleted or unsubscribed from the mailing list so as to no longer receive any such notifications.

Conclusion

As mentioned above, this summary is intended as a brief overview and may not address your particular situation. In addition, the Anti-Spam Act targets the sending not only of electronic messages for promotional purposes but also of various forms of electronic communication, including text messaging and the use of social media, including installation of software on another person’s computer. For additional information or to ensure that your marketing strategy fulfills all legal requirements, you should consult competent legal counsel on the matter.

Pascal Lauzon, Partner at BCF

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