Canadian Anti-Spam Law of 2010: Opt-in Framework (Prior Consent)

canadian_anti-spam_law_opt-in_framework

The basic requirement for prior, "opt-in" consent to "commercial electronic messages" is set forth in Clause 6(1)(a) of the Canadian Anti-Spam Law of 2010: the person to whom the message is sent must have consented to receiving "commercial electronic messages" from the sender before the message is sent.  See Canadian Anti-Spam Law, S.C. 2010, c. 23, §6(1)(a) (Can. 2010).  Whether the consent must be express, or may be implied, essentially depends on the nature of the relationship between the parties.  In addition, certain types of message are excluded from the consent requirement altogether.

I.  Messages that may be sent without prior consent ("opt-in") - Clause 6(6) of the Law.

Clause 6(6) of the Law expressly exempts six types of message from the prior consent requirement of Clause 6(1)(a):

  1. messages providing a quote or estimate for a product where the quote or estimate was requested by the recipient;
  2. messages completing or confirming a transaction agreed to by the recipient;
  3. messages providing warranty or product safety information about a product the recipient has purchased or is using;
  4. messages providing factual information about a product that involves some type of ongoing service relationship with the provider (e.g. a membership or subscription), or the ongoing service (e.g. membership) itself;
  5. messages directly relating to an employment relationship or an employee benefit plan that the recipient is currently participating in; and
  6. messages that deliver a product or service, including updates or upgrades, that the recipient is entitled to receive pursuant to a transaction the recipient has previously entered into with the sender (or the person on whose behalf the message is sent).

See Canadian Anti-Spam Law, S.C. 2010, c. 23, § 6(6) (Can. 2010).

Additional types of message may in the future be expressly exempted from the prior consent ("opt-in") requirement by regulation.  See id., at § 6(6)(g).

II.  Cases where prior consent is implied - Clauses 10(9) - 10(14) of the Law

Clause 10(9) of the Law describes three types of circumstances under which prior consent to receiving "commercial electronic messages" may be implied:

  1. the person who sends the message, the person on whose behalf the message is sent, or the person who "permits" the message to be sent has an "existing business relationship" or an "existing non-business relationship" with the recipient;
  2. the person to whom the message is sent has conspicuously published the "electronic address" to which the message is sent, has not accompanied that publication with a statement that the person doesn't wish to receive unsolicited commercial messages at that address, and the message is relevant to the recipient's business or official role or duties; or
  3. the person to whom the message is sent has disclosed to the sender (or to the person on whose behalf the message is sent, or who permits the message to be sent) the "electronic address" to which the message is sent, has not accompanied that disclosure with a statement that the person doesn't wish to receive unsolicited commercial messages at that address, and the message is relevant to the recipient's business or official role or duties.

Additional types of circumstances may in the future be specified by regulation as permitting implied consent.  See Canadian Anti-Spam Law, S.C. 2010, c. 23, § 10(9) (Can. 2010).

Clauses 10(10) and 10(13) of the Law provide specifications about what counts as an "existing business relationship" and an "existing non-business relationship."  The latter is clearly intended to include charitable and voluntary activities (i.e. relationships not involving for-profit activities).  See id., at §§ 10(10) and 10(13). 

Note: Because any "commercial electronic messages" sent under conditions of implied consent must comply with the content requirements of Clause 6(2) of the Law, an "opt-out" mechanism must be specified in the message.  See Canadian Anti-Spam Law, S.C. 2010, c. 23, § 6(2) (Can. 2010); Canadian Anti-Spam Law of 2010: Core Requirements.  For this reason, some people refer to "implied consent" as "opt-out consent".  See Library of Parliament Legislative Summary, Pub. No. 40-3-C28-E (Feb. 4, 2011), at 6-7.

III.  In all other cases, prior, express consent is required, and the request for express consent must comply with Clause 10 of the Law.

Clause 10(1) of the Law provides that where express consent to receiving "commercial electronic messages" is sought, the request for consent must "clearly and simply" set out (1) the purpose(s) for which consent is sought, and (2) information (which may be specified by regulations) that identifies the sender, and any person on whose behalf the messages would be sent.  See Canadian Anti-Spam Law, S.C. 2010, c. 23, § 10(1) (Can. 2010).

See also Library of Parliament Legislative Summary, Pub. No. 40-3-C28-E (Feb. 4, 2011), at 6-9.

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