CRTC Finalizes Electronic Commerce Protection Regulations

In anticipation of Canada's new anti-spam legislative regime (CASL) going into effect, draft regulations issued last fall by the Canadian Radio-television and Telecommunication Commission (CRTC) and Industry Canada faced many concerns raised by industry groups. As a result, these regulations were reconsidered.

On March 12, 2012, the CRTC finalized its Electronic Commerce Protection Regulations (ECPR) with respect to CASL.¹ These regulations were released in response to concerns that the CRTC's initial set of regulations imposed unnecessary and overly burdensome requirements with respect to the dissemination of commercial electronic messages (CEMs).

After further consultation, the CRTC introduced some increased flexibility in the ECPR by including, among other things, changes related to the content in CEMs, consent, and the unsubscribe mechanism. In effect, the CRTC regulations (ECPR) now:

• Clarifies that persons sending CEMs must identify themselves by the name by which they carry on business;
• Provides that a request for consent may now be obtained orally or in writing;
• Clarifies that the information to be included in a CEM and the unsubscribe mechanism may, if it is not practicable to include such information in the CEM, be posted on a webpage readily accessible by means of a link clearly and prominently set out in the CEM;
• Requires that the sender of a CEM provide their mailing address and either a telephone number providing access to a voice messaging system or an agent, an email address or web address; and
• Provides that the unsubscribe mechanism be “readily performed”, by removing the initial “performed in two clicks or less” requirement.

In addition to the ECPR, Industry Canada is considering what, if any, changes it will make to its current draft of CASL regulations. Those regulations will also need to be finalized and published before CASL will go into effect.

As it is not yet in force, the full impact and application of the CASL, and its corresponding regulations, currently remain uncertain. Nevertheless, it is expected that this legislation will invariably: (i) have a broad application; and notwithstanding the increased flexibility introduced in the ECPR, (ii) impose relatively onerous requirements on businesses that rely on CEMs

In anticipation of this new law, such businesses should be aware of the forgoing requirements, and should begin the process of ensuring that their internal policies and procedures comply with same. To this end, it will also be important for businesses who operate in the U.S. to note that the CASL requirements will be in addition to those prescribed in the U.S. Can-Spam Act. As a result, it will be important for such entities to also adapt to, and comply with, these laws as well.

Notes

1. The ECPR were published on March 28, 2012, in the Canada Gazette, 2012, II, 730.