Industry Canada has published proposed Electronic Commerce Protection Regulations in Part I of the Canada Gazette for consultation. The regulations follow an earlier round of consultations in 2011 and the CRTC’s regulations and guidelines for Canada’s anti-spam legislation.

Canada’s Anti-Spam Legislation (the actual name is too long to include) was passed in 2010 but requires regulations and an Order in Council to come into force (s.91). A first round of proposed regulations were published by Industry Canada and the CRTC in 2011 and received significant feedback from businesses over the scope of the prohibitions. Since then, the CRTC regulations have been finalized (Canada Gazette, March 2012) and this fall the CRTC published some guidelines.

Because the legislation applies broadly to commercial electronic messages (CEMs), the proposed regulations released today attempt to provide exceptions to prohibited communications, including for commercial electronic messages:

• sent within a business – s. 3(a);
• sent between businesses that are already in a business relationship – s. 3(a);
• solicited or sent in response to complaints and requests – s. 3(b);
• sent from outside Canada where the sender did not know or reasonably expect to know the recipient would be in Canada – s. 3(c); and
• sent due to a legal obligation or to enforce a legal right – s. 3(d).

The regulations also address exceptions with regards to ‘family relationships’ [s. 2(a)], third party referrals [s. 4(1)] and associations and clubs [s. 7].

The summary of the proposed regulations recognizes that the rules would not grandfather existing consent received in compliance with PIPEDA:

In some cases, where there is neither an exemption nor any form of consent under CASL, some businesses that may have been compliant with PIPEDA when seeking consent to collect or to use electronic addresses to send commercial electronic messages may no longer be able to contact those addresses under CASL.

Barry Sookman has been covering this issue closely and published a detailed summary and commentary on the proposed regulations. Blakes has a microsite dedicated to implementation of the legislation and background material.