Do you find yourself attending a network event and get home to find that you are now on everyone's distribution list and are being spammed or get emails daily from SEO companies in India? If you believed the new Canada anti-spam legislation was going to save you, you are mistaken. The new legislation as defined, will require each business owner to hire their own lawyer to explain all the caveats to them as well as additional people in order to track every email they send to ensure compliance, as the fines are ridiculous.The legislation not only covers what most of us refer to as spam, but the installation of computer software from email, address harvesting, prohibits misleading representations, and alteration of transmission data.
So back to why you are still going to receive those emails that you thought would be going away. First, most of the spam you probably receive is from outside of Canada, so the governing bodies cannot police anyone outside of Canada, so you will still receive the emails from SEO and Web Developers in India. As for the networking event above, you are most likely going to still get the email without any recourse as you are most likely going to fall under giving Implied Consent. The legislation provides for Implied Consent as well as Express Consent.
So what is implied consent? If you have a business relationship or non-business relationship and the recipient publishes their business or official email address to which the message is sent or the recipient disclosed their business or official email address to the sender without any indication that they did not wish to receive unsolicited emails. In the following scenarios, you can still receive emails from individuals or businesses for up to 2 years if a business relationship and up to 6 months if a non-business relationship:
So what is express consent? Express consent can be obtained orally or in writing as long as you make sure that the person understands that they are giving consent for the purpose of sending them emails. You must provide the capability to opt-out and withdraw consent later. Express consent can also be obtained through an opt-in mechanism such as a form on your website or a social media platform. You cannot construe that by someone not saying anything for adding them they have given you express consent.
Tracking and Fines
So what is required for tracking? The business is accountable for all of their employees, so you should make sure that you have a policy in place and that you make your employees aware of the legislation. You need to track when you received implied consent and when it expires because for implied consent there is the 6 month and 2 year time periods based on being a non-business or business relationship. Example: If you are given a business card, you are being given implied consent, so you need to track the day you received it and when it ends. If you send them an email past the expiry date, that is non-compliance and actionable if you are reported. This is not just for group emails, but this is also for sending emails to individuals. This could end up being a very onerous task for a small businesses, but the fines associated with not doing it if you are reported are outrageous. They are setting fines up to a $1M dollars which they will never collect and could end up putting a small business out of business. Imagine the power that the enforcers will have and I bet their compensation will be based on finding people/businesses.
It will be interesting to see how enforced this legislation will be and if after awhile it will be policed as well as the Do Not Call List, which is governed by some of the same bodies. The Do Not Call List has not stopped those that call at night, they have just moved their call centres overseas. It is just harder to find out who they are, and the calling line id that shows up on your phone is not real. The real violators of this legislation will just find new ways around the law. Unfortunately it will be some unsuspecting small business owner who is either not aware of the legislation, does not understand it, or fails to track consent properly that sends one email to the wrong person and ends up with an outrageous fine to make an example out of them.
This could be good news for Canada Post, graphic designers, and printers. Direct mail could not be in vogue again. This is until someone creates legislation to govern this as well. As for B2B, your sales reps now can get back to cold calling and talking to people real time instead of hiding behind their computer and email. What is sad is that abuse of a few ends up penalizing everyone with legislation enforcement that ends up stagnating business being conducted.
I attended a great presentation last week put on by Wison Vukelich LLP, a law firm in Markham, at an Ajax Pickering Board of Trade event. Two of their lawyers explained in great detail the key information that most businesses need to be aware of about the Anti-Spam Law. I would recommend reading through the presentation and determining what you need to do to protect your business. To read more information on the legislation, download the presentation. You might also want to consult with your Corporate Lawyer .
RK Fischer & Associates