Fighting Internet and Wireless Spam Act

Bill C-28, the Fighting Internet and Wireless Spam Act (FISA), is Canada's anti-spam legislation that received Royal Assent on December 15, 2010.[1] The bill replaced Bill C-27, the Electronic Commerce Protection Act (ECPA), which was passed by the House of Commons, but died due to the prorogation of the second session of the 40th Canadian Parliament on December 30, 2009. The Act went into effect July 1, 2014.

The Act will apply to "all communications sent by Canadian companies, to Canadian companies or messages simply routed through Canadian servers".[2] This includes personalised communications such as email or SMS messages delivering any form of communication, such as text, images, voice or sounds, or technologies not yet available.[3][4]

The Act requires that marketers may only send email to individuals who opt into receiving them.[5] Such consent may be implicit, such as by engaging in a transaction with a company, or by virtue of having one's telephone number or email address listed in a public directory.[6] It is mandatory for senders to enable recipients to opt out of receiving messages. Records collected by marketers via implied consent have a time limit.[7] This act makes it necessary for marketers to send a one-time double opt-in subscription request to all its subscribers whose consent is not been explicitly taken till the date this act came into force. As over the years companies' email lists expand and their consent type and source does not remain clear, most of the companies sent the double opt-in email to all their subscribers once the Act came into force.[8]

An email address is considered private information per PIPEDA, so its use is prohibited if consent has not been granted by the owner of the address.[9] The sender must be able to prove that consent was granted.[10]

The law is enforced by three organizations: the Competition Bureau, the Canadian Radio-television and Telecommunications Commission (CRTC) and the Office of the Privacy Commissioner.[11] It includes a "private right of action that will allow Canadian consumers and businesses to take civil action against those who violate the legislation".[12] The CRTC may levy fines of up to $1 million for an individual or $10 million for a business that contravenes the Act.[13] Each violation may result in a fine.[14]

The Act has been criticized by some, such as by David Poellhuber who says "It’s not going to change the spam you and I receive in our inboxes"[15] because about 70 per cent of spam originates from botnets operating in other countries, notably Brazil, Russia, and the United States;[16] and by academics who argue that it is unconstitutional.[17][18]

References

Notes

  1. ↑ LEGISinfo
  2. ↑ Ouellette
  3. ↑ Inbox Marketer
  4. ↑ Lam: "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."
  5. ↑ Lam
  6. ↑ Lam: "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."
  7. ↑ Androich: One element of Bill C-28 that appears inevitable, says Belton, is that there will be time limits associated with implied consent records.
  8. ↑ Melnyk, Jenn (2 July 2014). "CASL - MOVING FORWARD". SiteWyze. Retrieved 13 March 2015.
  9. ↑ Lam
  10. ↑ Webb
  11. ↑ Competition Bureau
  12. ↑ Competition Bureau
  13. ↑ Webb
  14. ↑ Androich: "Senders that violate the law face fierce fines: up to $10 million for an organization and up to $1 million for an individual. The penalties will be imposed per violation and sometimes will even be treated separately for each day the law is violated."
  15. ↑ Webb
  16. ↑ Webb
  17. ↑ Crowne, Emir and Provato, Stephanie, Canada's Anti-Spam Legislation: A Constitutional Analysis (November 13, 2014). John Marshall Journal of Information Technology & Privacy Law, Vol. 31, No. 1, 2014 . Available at SSRN: http://ssrn.com/abstract=2523985
  18. ↑ "Expect Canada’s anti-spam law could face Charter challenge, law professor says", http://business.financialpost.com/2014/12/03/expect-canadas-anti-spam-law-could-face-charter-challenge-law-professor-says/

External links

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