How Canada’s Fighting Internet and Wireless Spam Act (FISA — Bill C-28) affects marketers and businesses

The Fighting Internet and Wireless Spam Act, or FISA, is the new anti-spam bill passed by the Government of Canada in December, 2010. One of its main provisions is that marketers and commercial enterprises have to have the consent of recipients before sending them any unsolicited electronic messages.

This is different from the American CAN-SPAM law, which does not prohibit unsolicited emails per se, though it does require senders to provide the means of stopping any future mailings and being taken off a sender’s email list. The US has an “opt-out” rule whereas Canada has an “opt-in” one. Canada’s law is also broader in that it covers all personalized electronic messages, whether emails, SMS (text) messages, or any other electronic technologies which may be in use in the future.

Mass emails

Does this mean bulk emails or texts are illegal in Canada without the express consent of the people receiving these emails? No, since consent can be either explicitly given or implied. In fact, the range of situations which fall under “implied” consent seems to be quite broad. If there’s already an existing business relationship, that can count as implied consent. If a person or business’s 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, that also counts as implied consent. The messages sent do have to be deemed relevant to the recipient, however.

Companies that rely on emails to promote their products and keep in touch with their customers probably don’t need to worry too much if they already follow good email etiquette, because many of the regulations are based on best practices. That includes stating who the sender is, which company the message is for if it’s different than the sender, a clear and honest subject line, and contact information. As in the US, a way to stop receiving emails from the sender is mandatory.

Buying, selling, and supplying email lists

One area of concern for businesses and marketers is commercially available email lists, if that’s their source of addresses. Use of these lists has to follow the rules regarding consent as well. It doesn’t matter if the email addresses were collected in other countries; if they are used in Canada or the recipients reside in Canada, FISA and other legislations federal and provincial apply.

A Canadian federal law that’s particularly relevant is the Personal Information Protection and Electronic Documents Act (PIPEDA), which governs the collection and use of private information. According to PIPEDA, anyone collecting personal information (that’s not publicly available) must do so only with the awareness and consent of the party whose information is being collected. Not only do these parties have to know about the collection of their information, they have to know why the information’s being collected. For example, a company planning to sell, rent, or distribute an email list to other companies must inform its customers of this. If that hasn’t been done, the company will need to go back, notify the people on the list, and get permission before going any further. Otherwise, the company would be contravening PIPEDA and face possible fines.

Whether or not a person or company is concerned with breaking the law, it’s best to be very careful when sending mass emails. A lot of people see unsolicited email as spam, even when they provide a business with their address. If enough people mark a sender’s messages as spam or junk, email providers may flag and “blacklist” the sender, essentially stopping future emails. This doesn’t mean businesses shouldn’t do any direct electronic mailings , but they should be do them in a way that considers the recipients and respects their privacy.

For More InformationDirect_Mail_coverIn her book Direct Mail in the Digital Age, author and journalist Lin Grensing-Pophal offers ways to integrate email and other online technologies with traditional direct marketing techniques that promote products and services effectively without being so aggravating to consumers.

The book is available in our Web store where you can read the table of contents and preview some chapters.

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