New Anti-Spam Legislation dealing with Email and Internet Commerce

Everyone who has an email account, has received unsolicited email from someone who is selling something, whether it be investments, insurance, office space, retail space, a vacation property, etc. If you are one of those people who has been promoting yourself through such email solicitations, this will serve as a warning that the rules relating to email are about to change. On July 1, 2014 the new Federal Anti-spam legislation takes effect. This legislation makes it an offence to send a commercial electronic message to an electronic address (which includes, but is not limited to, email, instant messaging and texting), unless you have “consent”, either express or implied. It should be noted that the legislation also prohibits sending communications in which you “request consent” to send your commercial message. If you go the “express” consent route, there are some content requirements. You must set forth in the consent: the purpose for which consent is being sought, provide information about yourself and your business, provide contact information which must remain valid for a minimum of 60 days and provide a functional “unsubscribe” mechanism. Express consent can be obtained over the internet, but it must not be a default setting; the consumer must actively check a box or otherwise take an active step to indicate consent. Consent is “implied” for people with whom you already have a business relationship. To appreciate the effect upon, for example, a life insurance salesman; the life insurance salesman, can send his commercial communications to existing clientele as consent is “implied”, but must get “express” consent from new prospective clients. “Express” consent need not always be in writing, under certain circumstances it may be given orally. It is to be noted that referrals from existing clients are exempt. This will likely lead to more requests for referrals out of your existing customer base. The maximum penalties are high enough that it is dangerous to ignore the legislation. There is a maximum penalty of 1 million dollars for an individual and 10 million dollars for a corporation. An officer, director or business owner can be found liable for the activities of their employees or agents. In order not to disrupt “legitimate” email activity, a series of “exemptions” are provided. It is, of course, acceptable to send an inquiry to a person engaged in a commercial activity with whom you have no previous relationship, if the inquiry is with respect to such commercial activity. If you have a commercial website and your website downloads a “computer program” onto a customer’s computer, this will serve as a warning that the rules regarding computer program downloads are also about to change. On January 15, 2015 a further provision takes effect that prohibits installation of computer programs without consent, either express or implied. In order not to disrupt “legitimate” internet commerce, Cookies, HTML code, Java Scripts, operating systems, and any other program that supports the use of a primary computer program are permitted, where the customer has expressly consented to installation of the primary computer program. The foregoing has been an abbreviated summary which “hits a few highlights”. If you believe that your activities may be caught by the new Anti-Spam legislation, seek professional legal assistance, so that your activities can be considered with reference to the many provisions and exemptions set forth in the legislation.