The new Canadian anti-spam legislation will begin to take effect on July 1st. Essentially, the law forbids the sending of a commercial message to an email address, email or SMS, without explicitly obtained permission in advance. This implies, therefore, that all recipients have explicitly expressed to you their consent (opting-in) to receive your commercial messages. It will then be the responsibility of the sender to prove that they have indeed obtained permission from the recipient before sending a message of a commercial nature. It will not be sufficient to presume a recipient’s consent simply because they do not check the box unsubscribing from your mailing list (opting-out) after receiving a marketing message from you. Any contravention of the Act could result in severe monetary penalties ranging from $10,000 to $1 million.

And if this law came into effect tomorrow, would you be ready?

The good news is that you still have more than two months to prepare for this new reality. It is therefore time to solicit the consent of your contacts because, ironically, after July 1st 2014, just making such a request could constitute a violation under the Act. It is also desirable to establish a system to record obtained consents. You should also make sure to set up a mechanism that permits recipients to express, without cost, their desire to not receive other commercial electronic messages from you by creating a dedicated email address or a link to a web page for this purpose. Moreover, as the Act provides exemptions in its application, it is recommended that you consult your legal advisor to determine whether some of these exemptions apply to your business.

To help you in your preparation for the adoption of the law, CASACOM has developed a simple and effective checklist for your convenience. Just do the following to get ready.

Checklist to prepare you for the adoption of the Act

1. Verify if your business, or certain branches of it, sends commercial electronic messages (CEM) to communicate with consumers, customers, clients, potential clients, etc. If so, confirm, with the help of your legal advisor, if your CEM are subject to an exemption.

2. Educate the appropriate sectors of your business of the requirements of the Act and the consequences of non-compliance.

3. Ensure that all your emails comply with the requirements in the matters of consent and the exclusion mechanism.

4. Develop and implement the mechanism of exclusion (opting-out) in accordance with the Act.

5. Develop a compliance program and consent forms to immediately send to all recipients from whom you do not have valid consent. Make a list of persons from whom you need to obtain express consent, as well as a list of persons for whom tacit consent is sufficient.

6. Retain proof of consent in a database and immediately delete from distribution lists the name and the contact details of persons whose consent has not been obtained or whose desire for exclusion was received.

7. Regularly check your compliance program to validate its efficiency and keep audit reports that result.

Eric Barbeau About the author
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