Clause 6(1) of the Canadian Anti-Spam Law of 2010 sets forth two basic criteria distinguishing illegal spam from legal "commercial electronic messages" sent to "electronic addresses":
- Consent (express or implied) by the recipient to receiving "electronic messages" from the sender; and
- Message form and content that are consistent with the requirements of the Law.
Two types of message are excepted from these basic requirements: (1) messages between people who have a personal or family relationship; and (2) messages sent to business-people that consist only of an inquiry or application related to the recipients' business. See id. at § 6(5). Additional exceptions, and further specification as to what counts as a personal or family relationship, may be provided by regulations enacted pursuant to the Law. See id.
A "telecommunications service provider" (which includes any party with a legal interest in the facilities that directly enable telecommunications services) isn't liable for messages that don't comply with these requirement if the provider merely provides the service that enables the messages to be transmitted. See id. at §§ 1, 6(7).
Note: An "electronic message" is defined broadly in Clause 1 of the Law, and includes much more than email. An "electronic message" is "a message sent by any means of telecommunication, including a text, sound, voice or image message." Canadian Anti-Spam Law, S.C. 2010, c. 23, §1 (Can. 2010). The Canadian Library of Parliament, in its Legislative Summary, notes that this definition is broad enough to encompass "most means of electronic communication," except broadcasting, which is expressly excluded from coverage by Clause 5 of the Law. See Library of Parliament Legislative Summary, Pub. No. 40-3-C28-E (Feb. 4, 2011), at 3. An "electronic address" is, correspondingly, broadly defined in Clause 1 of the Law. It is "an address used in connection with the transmission of an electronic message to: (a) an electronic mail account; (b) an instant messaging account; (c) a telephone account; or (d) any similar account." Canadian Anti-Spam Law, S.C. 2010, c. 23, §1 (Can. 2010).
A "commercial electronic message" is distinguished from other types of "electronic message" by virtue of possessing certain specified commercial purposes, which may be inferred from the content of the message, any links contained in the message, or the contact information specified in the message. See Canadian Anti-Spam Law, S.C. 2010, c. 23, §2 (Can. 2010). These specified commercial purposes include (1) "offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land"; (2) "offers to provide a business, investment or gaming opportunity"; (3) advertisements or promotions for (1) or (2); or promotions of a person who does any of the foregoing things. See Canadian Anti-Spam Law, S.C. 2010, c. 23, §2 (Can. 2010).
Further note: The requirement that a sender must have obtained the recipient's consent (express or implied) - or be subject to a specific exception to that requirement under the Canadian Anti-Spam Law - before sending "commercial electronic messages" to the recipient means that the Canadian Anti-Spam Law has adopted an "opt-in" framework for commercial messages. This is one very significant difference between the Canadian Anti-Spam Law of 2010 and the U.S. CAN-SPAM Act of 2003.