On July 9, 2011, Industry Canada, a Department of the Canadian government, published Proposed Regulations in the Canada Gazette pursuant to its regulatory authority under subsection 64(1) of the Canadian Anti-Spam Law of 2010. See Canada Gazette, Vol. 145, No. 28 (2011), at 2244. After the Department reviewed the comments from the public, a second round of consultation began on January 5, 2013. See Canada Gazette, Vol. 147, No. 1 (2013), at 29. Industry Canada met with stakeholders who requested a meeting, before publishing the finalized Electronic Commerce Protection Regulations in the Canada Gazette on December 18, 2013. See Canada Gazette, Vol. 147, No. 26 (2013).
Family and personal relationships: the Regulations specify what constitutes a family or personal relationships for purposes of the exception provided by paragraph 6(5)(a) of the Canadian Anti-Spam Law of 2010. To find such a relationship, there must be "direct, voluntary, two-way communication" between the parties, and any other relevant factor must be considered. See Electronic Commerce Protection Regulations, §2 (Can. 2013).
Excluded commercial electronic messages: Section 6 of the Canadian Anti-Spam Law of 2010 does not apply to:
- Professional emails between employees of the same organization, or of different organizations
- Emails sent in response to a request, inquiry or complaint from the sender
- Emails sent to satisfy a legal obligation or court order, or to enforce or provide notice of legal rights or obligations
- Emails that satisfy the requirements of subsection 6(2) of the Canadian Anti-Spam Law of 2010 (mandatory information and unsubscribe mechanism), if the recipient consented to receiving them
- Emails that the sender reasonably believes will be opened in a foreign state, if they comply with the laws of that foreign state
- Emails sent by, or on behalf of, a charity to raise funds for that charity
- Emails sent by, or on behalf of, a political party, organization or candidate to solicit contributions
See Electronic Commerce Protection Regulations, §3 (Can. 2013).
Consent is not required when the sender sends a message as a result of a referral by a person who has an existing business, non-business, family or personal relationship with the recipient, and the sender discloses the name of the person who made the referral. See Electronic Commerce Protection Regulations, §4 (Can. 2013).
Conditions for use of consent: A person who obtained consent on behalf of another person whose identity was unknown may authorize any other person to use the consent, but each message must include (1) the identity of the person who obtained consent; and (2) an unsubscribe mechanism that allows the recipient to withdraw that consent. See Electronic Commerce Protection Regulations, §5(1) (Can. 2013). A person who obtained consent must ensure that authorized persons will notify him/her if they receive an indication that consent is withdrawn. See Electronic Commerce Protection Regulations, §5(2) (Can. 2013). Similarly, a person who obtained consent must promptly notify any authorized user on receipt of an indication that consent is withdrawn. See Electronic Commerce Protection Regulations, §5(3) (Can. 2013). Finally, a person who obtained consent must give effect to any withdrawal of consent and ensure that any authorized person does so as well. See Electronic Commerce Protection Regulations, §5(4) (Can. 2013).
Specified computer programs: For purposes of paragraph 10(8)(a)(vi) of the Canadian Anti-Spam Law of 2010, the following programs are "specified computer programs":
- programs installed by telecommunications service providers to protect the security of their networks from current and identifiable threats, or to upgrade or update the network
- programs necessary to correct a failure of the computer (or of a program on that computer) and installed for that sole purpose.
See Electronic Commerce Protection Regulations, §6 (Can. 2013).
Membership, club, association and voluntary organization: for purposes of paragraph 10(13)(c) of the Canadian Anti-Spam Law of 2010 (definition of "existing non-business relationship"), a club, association or voluntary organization is defined as a non-profit organized and operated for any purpose other than personal profit, whose income is not available for the personal benefit of any proprietor, member or shareholder (unless that proprietor, member or shareholder is an organization whose primary purpose is the promotion of amateur athletics in Canada). See Electronic Commerce Protection Regulations, §7(2) (Can. 2013).
Effective date: These regulations came into force on July 1, 2014, except section 6 which came into force on January 15, 2015. See Electronic Commerce Protection Regulations, Note to §8 (Can. 2013).