Clients

All organizations that send commercial email

to clients or prospects will need to review

their online marketing practices, to ensure

they comply with new consent, disclosure,

and “unsubscribe” requirements.

• Similarly, companies that distribute software

and updates/upgrades to their customers

will need to review their installation

practices and software agreements to meet

the new requirements.

• Advertisers and marketers will need to

familiarize themselves with how the existing

misleading and deceptive representations

laws will apply online.

Notably, the prohibition does not apply to a

telecommunications service provider merely

because the provider provides a service that

enables the transmission of the message. In

subsection 6(8), FISA also exempts telemarketing,

which is currently covered by the Do Not Call List

(“DNCL”) administered by the CRTC under the

Telecommunications Act. However, section 68 of

FISA provides for the repeal of subsection 6(8),

and the DNCL itself. At some point in the future,

for example, when VOIP and other technologies

blur the distinction between “calls” and

“commercial electronic messages”, the

government may make FISA apply directly to

telemarketing activities. Telemarketers should

take note, as the FISA consent standards are

higher than those for the DNCL and those of the

U.S. CAN‐SPAM Act, both of which take an overall

“opt‐out” approach.

A person contravenes the spam prohibition only if

the computer system used to send or receive the

message is located in Canada.

b) Consent

FISA does contain specific exceptions to the

express, “opt‐in” consent model. Consent is

implied for unsolicited communications if there is

an “existing business (or non‐business)

relationship” between the sender and recipient; if

the recipient has “conspicuously published” their

e‐mail contact information; if the recipient has

disclosed their e‐mail contact information to the

sender without indicating that they do...