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What marketers need to know now about Canada's proposed anti-spam legislation

August 2009 By Chris Carder

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While Canada has introduced some of North America’s most stringent privacy legislation, the absence of a law equivalent to CAN-SPAM has led marketers to view Canada as a virtual wild west—an untamed territory where any e-mail marketing practice is acceptable. But a new anti-spam bill is about to change e-commerce for everyone marketing to Canadians. The Electronic Commerce Protection Act (ECPA), also known as Bill C-27, is expected to become law in late 2009 with implementation to follow in 2010. If you are going to tap into this market of net-savvy consumers—more than 85 percent of Canadians are on the Internet—you need to take action now.

Overview of the Bill
The ECPA applies to any commercial message routed through a Canadian computer—a “commercial message” is one that’s content or hyperlinks include offers to sell, barter or lease goods and products, or promote a person who offers to sell things. Under the proposed law, marketers will need to be better prepared and actively adopt industry best practices—practices that, legislation aside, make for more effective e-mail marketing and higher response rates.

Following are the key changes resulting from the ECPA, how they differ from CAN-SPAM and steps U.S. marketers can take to comply with the anticipated Canadian regulations.

You need permission to e-mail prospects. This is the most significant difference between the Canadian bill and U.S. legislation. In the U.S., CAN-SPAM allows for marketing to anyone other than recipients who have unsubscribed from or opted out of an e-mail list. When marketing to Canadians, marketers will need either explicit (opt-in) or implied consent—“implied” meaning there is either:

• a business relationship—the recipient has purchased or leased a product, good or service from you, or has bartered or entered into a contract with you; or
• a nonbusiness relationship—the recipient has donated to, volunteered for or become a member of your organization.

You can e-mail anyone who has provided you with explicit consent, and if it’s implicit, you can send e-mail only for a period of 18 months after obtaining that consent. It’s advisable to use that 18-month timeline to make the consent explicit.

Your unsubscribe link must be active for 60 days, and you must honor requests to unsubscribe within 10 days (not “business days”) of receipt. CAN-SPAM requires unsubscribe mechanisms to operate for 30 days following e-mail transmission. The ECPA will double that timeline. In both countries, respective legislation requires marketers maintain clear and conspicuous unsubscribe procedures. In addition, while CAN-SPAM specifies that unsubscribe requests be fulfilled within 10 business days of receiving them, the Canadian law will require fulfillment within 10 calendar days.

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