Bill C-28 would prohibit sending commercial electronic messages to an electronic address by means of a computer system located in Canada without the recipient’s prior consent. The prohibition would cover all forms of telecommunication, including email, instant messaging and telephone, and all forms of messages, including text, sound, voice or image. A “commercial electronic message” is one designed to encourage participation in a “commercial activity”. An electronic message that contains a request for consent to send a commercial electronic message would itself be a commercial electronic message.
Consent may be express or implied. Express consent must be obtained in clear and simple language that describes the purposes for which the consent is sought, identifies the person seeking the consent and, where applicable, the person on whose behalf consent is sought.
The Bill would deem implied consent to have been given where there is an “existing business relationship” between the recipient and the sender. The Bill provides that an existing business relationship arises, among other things, from the recipient’s purchase or lease from the sender of a product, good or service within two years preceding the message. It would also arise where a contract is entered into between the recipient and the sender or the recipient accepts a business, investment or gaming offer within two years preceding the commercial electronic message, or where the recipient had made an inquiry or application to the sender within the six-month period preceding the commercial electronic message. Implied consent would also exist where a person discloses his email address to the sender or conspicuously publishes it without specifying that he does not wish to receive spam and where the message relates to his business or employment activities.
There are a few, limited circumstances where consent would not be required.