Set to come into effect in 2014, Bill 28 will make it illegal to send commercial electronic messages (CEMs) to recipients without their expressed or implied consent. Companies that fail to comply with this federal legislation, known as the Fighting Internet and Wireless Spam Act (FISA), could face penalties of up to $10 million per violation.
FISA has major implications for how every business in Canada communicates with clients and potential clients. There are three main activities that are covered under the new anti-spam legislation.
- Sending CEMs: These are defined as any electronic communication that encourages participation in a commercial activity, regardless of whether there is an expectation of profit. The new and broad definition of "electronic message" includes a message sent over any means of telecommunication. So, aside from email or instant messaging on mobile devices, this includes text, sound, voice or image. It therefore covers voice mail messages, webcam messages and the electronic exchange of pictures or graphic files.
- Altering transmission data in an electronic message in the course of a commercial activity: An example is when an electronic message is sent to a destination that is different from what the sender intended.
- Installing a computer program on another person's computer in the course of a commercial activity: Cookies, HTML code and Java scripts are exempt. Upgrades and version updates to software are also OK, so long as consent was obtained for the first software installation.
Because each business is different, the anti-spam legislation should be thoroughly reviewed. Here are some highlights to help you get started.
- Express consent must be received before a business can take part in any of the above three activities, namely sending CEMs, altering transmission of data in a CEM or installing a computer program on someone's computer. Consent must be obtained separately for each activity, i.e., the customer must be able to agree to one without having to agree to any or all of the others.