"Implied Consent" of Canada's New Anti-Spam Law Helps Marketers

 Canada's new anti-spam legislation, referred to as FISA - the Fighting Internet and Wireless Spam Act - was passed in mid-December and is expected to come into law later this year. Most expected new anti-spam laws to require marketers to obtain actual expressed consent before adding any email address to their marketing lists. Pardon me if this sounds confusing, but in some ways FISA requires this, but in some circumstances, it allows for implied consent, which, when read into further, actually seems to create a much more liberal approach. Allow me to explain:

While the new law does describe the necessary protocol for obtaining expressed consent ("clearly and simply" setting out the purpose of future email communications), it also lists the circumstances when consent to receive messages may be implied. Included in these circumstances is the following:

"The person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent;"  - Bill C-28 Sec. 9a

While the "non-business relationship" has been described by some lawmakers  as "membership in a club", for instance, a business relationship can also be interpreted as any business-customer relationship. It can therefore be argued that anyone who buys from a website's e-commerce store is implying consent to receiving messages. Does this mean that we no longer need to include the opt-in to email marketing communications check box on e-commerce checkout forms?

While the business-to-consumer circumstances above can be interpreted and debated in different ways, the door is left much more open for implied consent in business-to-business marketing communications:

"... the person to whom the message is sent has disclosed, to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent, the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address, and the message is relevant to the person’s business, role, functions or duties in a business or official capacity."  - Bill C-28 Sec. 9c

So in b2b communications, as long as you have sent the message to the appropriate person (eg. a promotional message about an accounting software to the IT Manager and the CFO) - which is always a recommended practice from even strictly a marketing sense - and the recipient has disclosed to you their email address and not indicated an objection to receiving such messages, you are in the clear.

It is clear that the intent of the proposed law is to deter the most damaging and deceptive forms of spam from occurring in Canada and help drive spammers out of Canada. Please keep in mind that I do not practice Internet Law. I'm not even a lawyer. I am simply sharing with my readers how the "Implied Consent" clauses are being interpreted by marketers going forward toward this legislation becoming active later on this year.  As marketers, weneed to understand how FISA – the Fighting Internet and Wireless Spam Act – will affect our marketing campaigns. There are requirements set forth in this legislation we must all be aware of, so I encourage all marketers to familiarize themselves with the entire Act.

Comments

[Alecia Marquis]

Great post. I think Bill c-28 does a good job at not going too far. The real teeth are in the penalties.

[Gary Wells]

I find it very interesting and disturbing at the same time that PIPEDA declares Canada to be a completely opt-in regime. Yet this legislation, as you point out in your post show Canada to be anything but. Implied consent is not exactly opt-in but opt-in by default. If that is what passes for permission based email, those of us who want our personal email addresses protected by the laws of this country don't have a prayer.

[Linda Smith]

From reading your other posts, it appears clear to me that you are very much in favour of loose legislation such as this (as seen in your internet privacy stance). I think that it is kind of shameful that our leaders in the marketing industry are the last to put a value on people's privacy. At the same time, I guess it makes sense for an agency owner such as yourself to be in favour of any legislation that makes your job easier. But shouldn't you also be concerned about the greater good for society?

[anti spam software]

It will also help SEO and internet marketeers to reform their services. They need not spam, they may do content marketing and other off page techniques.