Canada Bill has Key Differences from Can Spam

Canada Bill has Key Differences from Can Spam
Apr 28, 2009 2:37 PM, By Ken Magill

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An anti-spam bill has been introduced in the Canadian House of Commons that may have big ramifications for U.S. marketers.

Dubbed the Electronic Commerce Protection Act, Canada’s anti-spam bill is permission based and would allow individuals to sue suspected spammers.

The U.S. Can Spam Act does not require marketers to get permission from recipients before sending commercial e-mail. Also, it allows ISPs to sue spammers but not individuals.

Justin Weiss, associate counsel to the Email Sender and Provider Coalition, advised U.S. marketers to keep an eye on this bill.

“This bill is not law yet,” he said. “But if they have practices that are only looking at U.S. law and Can Spam, they may not be entirely aligned here.”

Allowing individuals to sue often spawns cottage industries of people bringing frivolous lawsuits.

For example, after Utah gave individuals the right to sue alleged spammers, Salt Lake attorneys Denver Snuffer and Jesse Riddle in 2003 filed more than 1,000 lawsuits against companies such as Verizon, eBay and Columbia House in a massive shakedown effort before the law was repealed.

In an apparent effort to head off such lawsuits, the Electronic Commerce Protection Act caps damages at $200 per violation.

Meanwhile, though the bill would require marketers to get permission from Canadian e-mail address holders before sending commercial messages, it would exempt commercial e-mail sent to people with whom the sender has a business relationship. It would also exempt e-mail from one individual to another inquiring about the second individual’s business.

Also under Canada’s Electronic Commerce Protection Act, marketers would have to honor opt outs within 10 days. However, the law does not specify 10 business days as the Can Spam Act does.

The unsubscribe mechanism would have to allow recipients to opt out electronically by providing either an e-mail address to which they can reply or a hyperlink that takes them to an opt-out mechanism.

The unsubscribe function would also have to remain active for at least 60 days after the mailing.

Also, Canada’s Electronic Commerce Protection Act would require commercial e-mail to contain contact information—valid for at least 60 days after the message is sent—for the sender of the message, and the person or organization on behalf of whom the message was sent if that person or organization is different than the sender.

This may mean that e-mail service providers would have to include their contact information in messages sent on behalf of clients to Canadians.

The Electronic Commerce Protection Act would allow penalties of up to $1 million for individuals and $10 million in all other cases, including businesses.

The Canadian Marketing Association applauded the bill.

“This is important news for legitimate marketers and good news for consumers,” said the CMA’s president and CEO, John Gustavson, in a statement. “Through rigorous enforcement and the backing of the federal government, we will now have a law that will help combat what has been an ongoing problem for legitimate companies that use the Internet to grow their business."

Under Canadian legislative procedure, the Electronic Commerce Protection Act will be up for multiple readings in the House. If it passes the House, it will be sent to the Senate.