Bill C-28 Canada's Anti-Spam Law - coming soon to a computer near you. 
By C. Yvonne Chenier

To advise a not-for-profit organization on Bill C-28, Canada's Anti-Spam Law (the "Act"),  one really has to be an expert or seek expert counsel in many areas of law, not to mention someone who can see into the future to know what the full extent of this new regime will be once the regulations have been published.  This law (http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=4901869&file=4 ) passed by the Government of Canada on December 10, 2010, will likely come into force sometime this year.

This legislation intends to stop unsolicited commercial electronic messages and unwanted spyware and malware from being transmitted and installed on our computers.  The Act is quite specific about what is being targeted.   Someone versed in the ways and words of technology might come in handy to can talk sensibly about cookies, code and scripts and to identify when something is dialling, routing, addressing or signalling.

The Act has extensive enforcement mechanisms and strong penalties.  You will have to be familiar with administrative law to understand the demands, notices, warrants, and injunctions that could be used against you.    The rules about violations require some knowledge of corporate law to trace who will actually be responsible in any organization and where the buck will stop.   It would help to have a conflict of law expert to call upon when needed as the Act overrides Part 1 of the Personal Information Protection and Electronic Documents Act when there is a conflict.  When legislation amends the Competition Act, Personal Information Protection and Electronic Documents Act and the Telecommunications Act you know this is serious stuff. 

Any organizations in the not-for- profit sector that communicate electronically for the purposes of conducting any commercial activity should take steps now to familiarize themselves with this legislation and adjust their communication practices to comply with the new requirements.  The legislation does not apply to non-commercial activity and according to the questions and answers provided by Industry Canada on their website (http://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00569.html#q2 ), charities that engage Canadians through email are not subject to the legislation if these communications do not involve selling or promoting a product. Therefore an organization needs to carefully plan their communication practices to separate their purely charitable (with no commercial element) electronic messaging from any communication that is of a selling or promoting nature as there will be separate rules that apply. 

For those organizations that are selling or promoting using electronic communication, there are basically two parts to the prohibited practice. Firstly it is "prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless the person to whom the message is sent has consented to receiving it, whether the consent is express or implied". For the not-for-profit sector, it is interesting to note that consent is implied if there exists a business or non-business relationship between the parties. The legislation further defines an "existing non-business relationship" as one arising (in the last 2 years before the message was sent) from a donation or gift to or volunteer work for a registered charity, or membership in a club, association or voluntary organization (yet to be defined by the regulations).  Secondly, a commercial electronic message must be in a form that has prescribed requirements and information such as the authorizing sender's identity and contact information (must be valid for a minimum of 60 days) and a prescribed unsubscribe mechanism.

As with most legislation there are exceptions, some of them set out in the regulations, yet to be published.  The prohibition will not apply to a commercial electronic message that is an interactive two-way voice communication between individuals or sent by facsimile or voice recording to a telephone account. That is what the National Do Not Call List registration procedure (https://www.lnnte-dncl.gc.ca/index-eng ) deals with.  The Act does not apply to broadcasting a message in the old fashioned way (as defined subsection 2(1) of the Broadcasting Act), so perhaps we will start getting spammed on our personal TV sets. 

At least we can take comfort that we will not be receiving any more spam from the government as the Act will be binding on any government corporation (federal or provincial) when it is acting as such in the course of any commercial activity. Thankfully, there are transitional provisions that will allow us all to understand the procedures under this act, if not the actual meaning some of the technical terminology, before the enforcement procedure will begin.  

Check Industry Canada's website for any updates on this legislation such as the release of regulations and the coming into force date (http://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/h_gv00567.html ). In the meantime all not-for- profit organizations would be well advised to decide if they are selling any products using electronic messages.  If they are, then policies and procedure should be developed to comply with this new anti-spamming regime.  It is not too early to train all staff and volunteers who deal with electronic communication about the soon to be mandatory requirements.