July 8, 2011, 12:13 PM

A new hurdle for e-mail

Canada’s war on spam will force changes on U.S. e-mail marketers.

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Online retailers will face more difficulty reaching consumers in Canada via e-mail marketing messages under a law set to go into effect by 2012.

The country’s Fighting Internet and Wireless Spam Act—FISA for short—is designed to protect consumers from spam. Unlike a similar law that went into effect in the United States in 2003—the CAN-SPAM act—FISA  requires senders of commercial e-mail messages to obtain consent from recipients prior to sending any message. In the United States, retailers and marketers can send unsolicited messages if they enable consumers to opt-out of receiving future messages from the sender, such as through links at the bottom of the e-mail.

The Canadian law applies to all messages sent to consumers in that country, regardless of where the e-mail sender is based. That means U.S.-based e-retailers with customers in Canada should abide by the new law, says Charles Lupien, an attorney with Montreal-based Fasken Martineau DuMoulin who focuses on intellectual property and e-commerce. The law also applies to any messages accessed through servers in Canada; that means a U.S. consumer vacationing in Toronto who gets a message from an e-retailer that is considered spam under the new Canadian law can take action against that e-retailer.

For U.S.-based e-retailers, FISA means changing their procedures to match the higher Canadian standard, says Robert Consoli, director of deliverability and provisioning services for e-mail services provider Silverpop. The law all but nixes the buying of e-mail lists for blanket lead generation because without prior consent nearly any commercial e-mail message may be subject to the Canadian law if it routes through or is accessed within the nation’s borders.

“It’s a more conservative view, but it doesn’t hurt to follow along with this,” Consoli says, adding that e-retailers should make sure they have proper e-mail opt-in documentation and also clean their e-mail lists of customers who’ve not bought anything within two years. The new Canadian law includes a prior consent exception if the commercial e-mail message’s facilitates, completes or confirms a transaction, such as making sure a consumer really ordered a product.  

Once an e-retailer obtains consent from a consumer, that consent remains valid until the consumer rescinds it. Penalties for sending spam under the Canadian standard are steep, Lupien says. The law gives consumers a private right to action, which means any consumer can go after a company that sends spam. The Canadian law levies a $200 fee per spam message sent, and the recipient doesn’t have to prove damages. “The scary part of it is it’s not true hard-core spammers that will be affected by this. It is going to be the big companies that didn’t really care about the law,” Lupien says. “They may send messages that are legitimate under CAN-SPAM but that don’t follow Canada’s law and open the door to big class action suits.”

Two Canadian governmental agencies, the Canadian Radio-Telecommunications Commission and the Office of the Privacy Commissioner, will write and enforce the specific rules that e-mail marketers must follow under FISA.

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