28 March 2012

The Newest Privacy Act with the 52 Word Title

Photo Credit: John Delorey; Creative Commons Licence
Ever heard of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act? No need to be ashamed if you haven't.

It was supposed to have a simple four word official short title - Fighting Internet Spam Act (FISA) - but politics got in the way back in the days of minority governments, way back last year. No short title could be agreed to, so we wound up with a 52 word official title. Quite a mouthful really. Not even prone to evolving into a catchy acronym. Certainly the longest statute title I've heard of, which doesn't have some shorter official alternative.

And why should you care? It has a significant impact on business practices that use e-mail or other electronic means of communicating with clients - other than broadcasting. It's already law, but regulations are slowly rolling out.

It generally prohibits the commercial sending of e-mail to people you don’t know. You especially can no longer use mass e-mail lists you have purchased from third parties if those on the list haven’t consented to your type of use of their contact information, thus greatly limiting e-mail marketing in comparison to bulk physical mail marketing.

You now need express consent (opt-in as opposed to U.S. opt-out method), except there can be implied consent: (1) where there is an existing business, personal or family relationship; or (2) if a personal or business address or phone number has been “conspicuously published or disclosed” and there’s no statement saying that the recipient doesn’t want unsolicited commercial messages, although the messages sent have to be relevant to the recipient.

All commercial electronic messages must now state: (1) who is real sender; (2) sender’s contact information; (3) method for recipient to stop future messages.

The Canadian Radio and Television Commission (CRTC) and Privacy Commissioner of Canada are receiving enforcement resources, so don't thing that this is just one of those paper exercises that will never be enforced. If you're a business that relies on e-mail marketing, you need to figure our whether your current practices could run afoul of FISA (yes, I just can't bear to repeat the 52 word official title again), and if even the consents you are currently obtaining from your customer need to be modified to take account of the new law. Because it is truly new and uncharted territory, you need legal advice.

The Act provides for hefty penalties: $1 million per violation for individuals, and $10 million per violation for organizations. Now you know.

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