An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

S.C. 2010, c. 23

Assented to 2010-12-15

An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

SUMMARY

This enactment establishes a regulatory framework to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities.

It enacts An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, which prohibits the sending of commercial electronic messages without the prior consent of the recipient and provides rules governing the sending of those types of messages, including a mechanism for the withdrawal of consent. It also prohibits other practices that discourage reliance on electronic means of carrying out commercial activities, such as those relating to the alteration of data transmissions and the unauthorized installation of computer programs. In addition, that Act provides for the imposition of administrative monetary penalties by the Canadian Radio-television and Telecommunications Commission, after taking into account specified factors. It also provides for a private right of action that enables a person affected by an act or omission that constitutes a contravention under that Act to obtain an amount equal to the actual amount of the loss or damage suffered, or expenses incurred, and statutory damages for the contravention.

This enactment amends the Competition Act to prohibit false or misleading commercial representations made electronically.

It also amends the Personal Information Protection and Electronic Documents Act to prohibit the collection of personal information by means of unauthorized access to computer systems, and the unauthorized compiling of lists of electronic addresses.

Finally, it makes related amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, the Canadian Radio-television and Telecommunications Commission Act and the Telecommunications Act.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

INTERPRETATION

Marginal note:Definitions
  •  (1) The following definitions apply in this Act.

    “commercial activity”

    « activité commerciale »

    “commercial activity” means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.

    “Commission”

    « Conseil »

    “Commission” means the Canadian Radio-television and Telecommunications Commission.

    “Commissioner of Competition”

    « commissaire de la concurrence »

    “Commissioner of Competition” means the Commissioner of Competition appointed under subsection 7(1) of the Competition Act.

    “computer program”

    « programme d’ordinateur »

    “computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.

    “computer system”

    « ordinateur »

    “computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.

    “court of competent jurisdiction”

    « tribunal compétent »

    “court of competent jurisdiction” means the Federal Court or a superior court of a province.

    “data”

    « données »

    “data” means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system.

    “document”

    « document »

    “document” has the same meaning as in section 487.011 of the Criminal Code.

    “electronic address”

    « adresse électronique »

    “electronic address” means an address used in connection with the transmission of an electronic message to

    • (a) an electronic mail account;

    • (b) an instant messaging account;

    • (c) a telephone account; or

    • (d) any similar account.

    “electronic message”

    « message électronique »

    “electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message.

    “person”

    « personne »

    “person” means an individual, partnership, corporation, organization, association, trustee, administrator, executor, liquidator of a succession, receiver or legal representative.

    “Privacy Commissioner”

    « Commissaire à la protection de la vie privée »

    “Privacy Commissioner” means the Privacy Commissioner appointed under section 53 of the Privacy Act.

    “telecommunications facility”

    « installation de télécommunication »

    “telecommunications facility” means any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications.

    “telecommunications service”

    « service de télécommunication »

    “telecommunications service” means a service, or a feature of a service, that is provided by means of telecommunications facilities, whether the telecommunications service provider owns, leases or has any other interest in or right respecting the telecommunications facilities and any related equipment used to provide the service.

    “telecommunications service provider”

    « télécommunicateur »

    “telecommunications service provider” means a person who, independently or as part of a group or association, provides telecommunications services.

    “transmission data”

    « données de transmission »

    “transmission data” means data that

    • (a) relates to the telecommunications functions of dialling, routing, addressing or signalling;

    • (b) either is transmitted to identify, activate or configure an apparatus or device, including a computer program, in order to establish or maintain a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and

    • (c) does not reveal the substance, meaning or purpose of the communication.

  • Marginal note:Meaning of commercial electronic message

    (2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

    • (a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

    • (b) offers to provide a business, investment or gaming opportunity;

    • (c) advertises or promotes anything referred to in paragraph (a) or (b); or

    • (d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.

  • Marginal note:Other commercial electronic message

    (3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.

  • Marginal note:Exclusion

    (4) An electronic message described in subsection (2) or (3) that is sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada is not considered to be a commercial electronic message.

  • Marginal note:Person to whom a message is sent

    (5) For the purposes of this Act, a reference to the person to whom an electronic message is sent means the holder of the account associated with the electronic address to which the message is sent, as well as any person who it is reasonable to believe is or might be authorized by the account holder to use the electronic address.

CONFLICT OF PROVISIONS

Marginal note:Precedence of this Act

 In the event of a conflict between a provision of this Act and a provision of Part 1 of the Personal Information Protection and Electronic Documents Act, the provision of this Act operates despite the provision of that Part, to the extent of the conflict.

PURPOSE

Marginal note:Purpose of Act

 The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct

  • (a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;

  • (b) imposes additional costs on businesses and consumers;

  • (c) compromises privacy and the security of confidential information; and

  • (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.

HER MAJESTY

Marginal note:Act binding on certain agents

 This Act is binding on any corporation that is expressly declared by or under any Act of Parliament or of the legislature of a province to be an agent of Her Majesty, when the corporation is acting as such in the course of any commercial activity.

APPLICATION

Marginal note:Broadcasting excluded

 This Act does not apply in respect of broadcasting by a broadcasting undertaking, as those terms are defined in subsection 2(1) of the Broadcasting Act.

REQUIREMENTS AND PROHIBITIONS

Marginal note:Unsolicited electronic messages
  •  (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless

    • (a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and

    • (b) the message complies with subsection (2).

  • Marginal note:Contents of message

    (2) The message must be in a form that conforms to the prescribed requirements and must

    • (a) set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent;

    • (b) set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and

    • (c) set out an unsubscribe mechanism in accordance with subsection 11(1).

  • Marginal note:Period of validity of contact information

    (3) The person who sends the commercial electronic message and the person — if different — on whose behalf the commercial electronic message is sent must ensure that the contact information referred to in paragraph (2)(b) is valid for a minimum of 60 days after the message has been sent.

  • Marginal note:Interpretation

    (4) For the purposes of subsection (1)

    • (a) an electronic message is considered to have been sent once its transmission has been initiated; and

    • (b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.

  • Marginal note:Exception

    (5) This section does not apply to a commercial electronic message

    • (a) that is sent by or on behalf of an individual to another individual with whom they have a personal or family relationship, as defined in the regulations;

    • (b) that is sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity; or

    • (c) that is of a class, or is sent in circumstances, specified in the regulations.

  • Marginal note:Exception

    (6) Paragraph (1)(a) does not apply to a commercial electronic message that solely

    • (a) provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent;

    • (b) facilitates, completes or confirms a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent;

    • (c) provides warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased;

    • (d) provides notification of factual information about

      • (i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or

      • (ii) the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent;

    • (e) provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled;

    • (f) delivers a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent; or

    • (g) communicates for a purpose specified in the regulations.

  • Marginal note:Exception

    (7) This section does not apply to a telecommunications service provider merely because the service provider provides a telecommunications service that enables the transmission of the message.

  • Marginal note:Exception

    (8) This section does not apply to a commercial electronic message

    • (a) that is, in whole or in part, an interactive two-way voice communication between individuals;

    • (b) that is sent by means of a facsimile to a telephone account; or

    • (c) that is a voice recording sent to a telephone account.

 
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