#CyberFLASH: Canada’s Anti-Spam Law Must Be Taken Seriously: The Case Of Porter Airlines

cra-passwords-security_211076204-e1402005190177Last June 29th, Porter Airlines Inc. agreed to pay $150,000 pursuant to an agreement with the Canadian Radio-television and Telecommunications Commission (CRTC), for alleged violations to Canada’s anti-spam law. Porter Airlines was indeed under investigation by the CRTC for these alleged violations.

On January 1st, 2014, the majority of the provisions of Canada’s anti-spam legislation came into force1. These provisions include those governing the transmission of unsolicited electronic messages for commercial reasons to recipients. It is, however, relevant to note that on January 15, 2015, the provisions of the Act dealing with the unsolicited installation of computer software came into force, while the provisions providing for the right to institute a private action against infringers will come into force only on July 1, 2017.

The last 18 months have revealed that the CRTC intends on setting examples to ensure that Canada’s anti-spam law is respected. In this regard, the recent case of Porter Airlines offers a striking example of the broad scope of this law, as well as the possible consequences of breaching its provisions, even unintentionally.

The Anti-Spam Act: Rules and Interdictions

Since January 1st, 2014, a company may not send unsolicited commercial electronic messages without obtaining the consent of the recipient. A commercial electronic message is defined as an e-mail of which the purpose is to encourage the recipient to participate in a commercial activity. This includes advertisement, offers to purchase or sell, as well as business or investment opportunities.

The recipient’s consent may be implicit in certain situations specifically provided for in the Act, such as when an “existing business relationship” exists between the sender and the recipient. If no implicit consent exists, the recipient’s consent needs to be expressed.

A request for consent must include specific information, including the purpose for which the consent is being sought and the information necessary to identify the person soliciting the recipient. Each commercial electronic message targeted by the Act must contain an “unsubscribe mechanism” allowing the recipient to freely express his willingness to stop receiving any commercial electronic messages.

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