Electronic Commerce Protection Regulations proposed for Canada's Anti-Spam law.
By: Yvonne Chenier
In last month's newsletter we wrote about Canada's Anti-Spam law (http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=4901869&File=44) (the "Act") that will soon be in force and how it may affect the not-for-profit sector. Some of the terms in that Act that dealt with the sector were to be defined in the regulations. All who send out electronic messages promoting a commercial activity (whether or not the person who carries it out does so in the expectation of profit) should be prepared. If the proposed regulations that have been released for comment are registered for this Act when it comes into force, relationship building practices and the definition of members by an organization will become the key to proper communication practices. (http://www.gazette.gc.ca/rp-pr/p1/2011/2011-07-09/html/reg1-eng.html#reg)
Club, association or voluntary organization?
Consent to receive commercial electronic message is implied under the Act if there exists a "non-business relationship" (s. 10 ((9) (a)). This is defined, among other things, as "membership, as defined in the regulations, by the person to whom the message is sent, in any of those other persons, within the two-year period immediately before the day on which the message was sent, where that other person is a club, association or voluntary organization, as defined in the regulations."(s. 10 (13) c)).
In the proposed regulations these organizations are broadly defined as those "organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than profit, if no part of its income is payable to, or otherwise available for the personal benefit of any proprietor, member or shareholder of that organization unless the proprietor, member or shareholder is an organization the primary purpose of which is the promotion of amateur athletics in Canada."(s. 4(2)).
This wide open definition of an organization does not restrict it to just registered charities or other formally organized and constituted organizations under federal or provincial law but could encompass many informal groups set up for a variety of purposes. Furthermore it confirms that an organization set up to financially benefit amateur athletics in Canada is included.
The proposed regulations state that "membership is the status of having been accepted as a member" (s. 4(1)). This wording puts the onus on the organization to do a positive act to confirm individuals as members before recipients of commercial electronic messaging can be considered to be giving their implied consent.
In other words, someone who is an accepted member of any type of organization that is not set up for profit purposes, whether it is formally constituted or not, has given their consent to receive commercial electronic messages from that organization. "Accepted as a member" is the key phrase here. Organizations will have to review their definition of member and their practices. As we have written before, organizations should be wary of broadening their membership base as it leads to other problems such as voting powers and the need to receive notices. Perhaps a new class of non-voting member could be created just to receive permitted forms of commercial electronic messages.
Is there a personal relationship?
Under the Act, anyone can send a commercial electronic message if the recipient has consented (s.6 (1) (a)). Consent is implied if the exists a "personal relationship" (s.6 (5) (a). The proposed regulations have defined a personal relationship as "the relationship, other than in relation to a commercial activity, between an individual who sends the message and the individual to whom the message is sent, if they have had an in-person meeting and, within the previous two years, a two-way communication." (s.2 (b)).
It would seem that only the actual person in an organization who has had a non-commercial personal meeting with someone and has further communicated (back and forth) can even consider sending a commercial electronic message (unless they are a member as discussed above). Personal meetings will become the key to those in the organization who want to communicate using commercial electronic messages. It will become important to follow up each personal meeting with some sort of back and forth communication on a regular basis (at least every two years) so that you can keep them on your commercial electronic message blast about whatever it is that you are trying to sell to them.
Canada's anti-spam law could be weaving a tangled web of administrative checks and balances for communication practices of not-for-profit organizations. Membership is key. Personal relationships open up doors. Keeping track of all these relationships will be paramount so as not to offend the legislation and attract complaints.
These are proposed regulations and interested persons may make submissions to the Department of Industry until September 7, 2011. According to the Minister in a press release, the Act will likely come into force early in 2012. (http://www.ic.gc.ca/eic/site/ic1.nsf/eng/06636.html )