Concurrent with this announcement, Industry Canada published its finalized Electronic Commerce Protection Regulations (ECPR) with respect to CASL. These regulations were released in response to concerns that its initial set of regulations imposed unnecessary and overly burdensome requirements with respect to the dissemination of commercial electronic messages (CEMs).
After further consultation, Industry Canada introduced a degree of increased flexibility in the ECPR by including, among other things, changes related to familial relationships, excluded CEMs, and the definitions of specified computer programs. In effect, the ECPR now:
- defines “family relationship” to mean individuals who: (i) are related to one another through a marriage, common-law partnership, or as parent and child; and (ii) have had voluntary, direct, two-way communication;
- excludes CEMs, for example:
- sent to personnel within an organization if the CEM concerns the activities of the organization;
- sent to personnel from one organization to another if the organizations have a relationship and the CEM concerns the activities of the organization to which the CEM is sent;
- sent to a limited-access secure and confidential account to which messages can only be sent by the person who provides the account to the person who receives the message
- sent to satisfy a legal or juridical obligation, or enforce a right arising under a law of Canada, of a province or municipality of Canada or of a foreign state;
- that will be accessed in a foreign state (listed in the schedule to the ECPR) and the CEM conforms to the law of the foreign state;
- sent by or on behalf of a registered charity;
- sent by or on behalf of a political party or organization; and
- broadens the circumstances in which installation of a specified computer program is exempt from consent.
As CASL will be in force on July 1, 2014, the full impact and application of the CASL, and its corresponding regulations, currently remain uncertain. It is expected that this legislation will invariably: (i) have a broad application (notwithstanding the somewhat increased flexibility introduced by the ECPR) and (ii) impose relatively onerous requirements on businesses that rely on CEMs.
In anticipation of this new law, businesses should be aware of the forgoing requirements, and should begin (or continue) the process of ensuring that their internal policies and procedures comply with same.
To this end, it will also be important for businesses which operate in the U.S. and send CEMs to Canadians 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.