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Preparing for Canada’s anti-spam law: what your restaurant needs to know
By Chad Finkelstein
February 6, 2012
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 Electronic message marketing is an effective method for restaurant owners to reach their broad customer bases in Canada. However, the method in which these messages are disseminated is about to change, and restaurants should be aware of how new anti-spam law may impact on their marketing strategies.
In December 2010, the Fighting Internet and Wireless Spam Act was passed in Canada. While it is not yet in force, the CRTC and Industry Canada recently published draft regulations to govern the form of commercial electronic messages sent to Canadians, such as e-mail, text and maybe even social media messages. The anti-spam legislation differs from its counterpart in the US which applies only to email. In comparison, the scope of Canada’s restrictions is far more broad.
As restaurants prepare for electronic message marketing, it would be prudent to bear the following proposed regulations in mind:
- The new opt-in consent requirements for receiving electronic messages means that restaurants should get new consent from their existing customers and subscribers, rather than relying on previous opt-in consent
- Businesses will need either express or implied consent before sending any electronic message
- An “unsubscribe” function must be presented “clearly and prominently” and must not take more than two clicks to access
- The message must include the name of the sender or the name of the person on whose behalf it is sent
- The sender’s address, phone number and email address and website must be included in the message
- The message should contain a statement identifying the sender and any other names by which they carry on business
- If the above information cannot practically be included in the message itself, an exception may be available whereby the information and the unsubscribe option can be provided in a clearly labeled one-click link to a website which contains them
- The above information must also be included in any request for consent to send electronic messages, which request must also contain the purpose of the message and a statement that the recipient may withdraw his/her consent at any time
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It is also worth noting that the anti-spam law includes anti-spyware provisions where the express consent of users is required in connection with the installation of computer programs. For the purposes of this legislation, it does not matter whether the computer program to be installed is, in fact, spyware. Any notice to be provided in this event should contain some description regarding possible impacts on the user’s computer and email address in advance of the program being installed. Cookies, Java Script, HTML and operating systems are exempted from these prohibitions so long as the user’s conduct makes it reasonable to believe that they consented to the program’s installation.
Businesses will be permitted to rely on a three-year grace period from the date on which the legislation comes into force with respect to existing business relationships with recipients. In fact, the regulations specify certain categories of customers who have been active within the prior two-year or six-month period as qualifying as “existing business relationships."
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Penalties for failing to comply with these regulations will be up to $10,000,000 for companies and $1,000,000 for individuals, so a strong understanding of anti-spam law is necessary before the regulations are enforced.
The application of Canada’s new anti-spam legislation is far-reaching, and restaurants should be preparing now for the future of electronic messaging.
See also:
About the author
Chad Finkelstein is a franchise lawyer at Dale & Lessmann LLP (www.dalelessmann.com) in Toronto and can be reached at cfinkelstein@dalelessmann.com or (416) 369-7883.
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