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January 4, 2013

On January 4, 2013, Industry Canada issued revised draft regulations (Electronic Commerce Protection Regulations) for Canada’s upcoming anti-spam legislation (“CASL”).  The revised regulations will be subject to comment until February 4, 2013 and generally clarify certain key CASL definitions and exceptions and add some new exceptions.  Some of the key aspects of the new draft regulations include:

Definitions of “family relationship” and “personal relationship”.  CASL includes an exemption for commercial electronic messages (“CEMs”) sent between persons who are in a personal or family relationship.  The draft regulations define “family relationship” to include specified blood relationships, marriage, common-law partnerships and adoption.  “Personal relationship” is defined as a relationship between two people that have had direct voluntary communications where it would be reasonable to conclude it’s personal based on certain non-exhaustive factors (including sharing of interests, experiences, information in communications and frequency of communications), unless a recipient has asked to no longer receive CEMs.  The proposed new definition of “personal relationship” has been broadened to allow a more flexible approach, in part to address criticisms that the previous approach would not allow, for example, CEMs to be sent where only a virtual personal relationship existed.

Exemptions for CEMS sent within a business (or businesses already in a business relationship).  In particular, these exemptions would apply to messages sent between employees, representatives, contractors or franchisees of a business / businesses in a business relationship that are relevant to the recipient’s business, role, function or duties.

An exemption for CEMs sent to fulfil a legal obligation or enforce a legal right.  In particular, the draft regulations would exclude messages sent to satisfy a legal or juridical obligation; give notice of an existing or pending right; or enforce a right, all defined in more detail in the draft regulations.

A consent exemption for third-party referrals.  The draft regulations include an exemption for “third party referrals” where there is an existing relationship (family, personal, business or non-business) between one individual, such as an agent, and another individual, such as an existing client, and the existing client refers a prospective client, provided that he or she also has an existing relationship with the person being referred.  A sender would be permitted to send one message seeking consent, provided they provided the name of the person providing the referral and otherwise complied with CASL’s form and unsubscribe requirements.  According to Industry Canada, the new referral exemption “strikes a balance by allowing third party referrals without undermining the requirements laid out in [CASL]”.

Clarification of the application of CASL to social media.  Helpfully, Industry Canada’s Regulatory Impact Analysis Statement issued with the new draft regulations state that some social media is outside CASL: “… the concern that it would be difficult to satisfy identification and unsubscribe requirements on popular social networking services or instant messaging services.  Currently, where they are not sent to electronic addresses, the publication of blog posts or other publications on microblogging and social media sites is not within the intended scope of [CASL]”.

Industry Canada has also reminded businesses that there will be a three-year transitional period once CASL comes into force (consent will be implied for three years for existing business relationships) and is indicating that interpretational guidelines may be issued, which may include new guidelines addressing the referral exemption and referral marketing generally.

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