Bill S-202

1st Session, 40th Parliament,

57 Elizabeth II, 2008

senate of canada

BILL S-202

An Act respecting commercial electronic messages

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

SHORT TITLE

1. This Act may be cited as the Anti-Spam Act.

INTERPRETATION

2. The following definitions apply in this Act.

“address-harvesting software” means software that searches the Internet for electronic addresses and collects, compiles, captures or otherwise harvests electronic addresses.

“commercial electronic message” means an electronic message that

(a) advertises, promotes or offers to supply goods, a service, land, an interest in land, or a business, investment or gaming opportunity,

(b) advertises or promotes a provider or prospective provider of anything referred to in paragraph (a), or

(c) is of a kind prescribed by regulation,

but does not include an electronic message that is sent by or on behalf of a government department or agency, a court or a tribunal.

“educational institution” means

(a) a non-profit institution licensed or recognized by or under an Act of Parliament or the legislature of a province to provide pre-school, elementary, secondary or post-secondary education;

(b) a non-profit institution that is directed or controlled by a board of education regulated by or under an Act of the legislature of a province and that provides continuing, professional or vocational education or training; or

(c) a department or agency of any order of government, or any non-profit body, that controls or supervises education or training referred to in paragraph (a) or (b).

“electronic address” means an address in connection with an e-mail account, instant messaging account, telephone account or similar account.

“electronic message” means a message that is sent through a telecommunications service provider to an electronic address, but does not include a message sent by way of a voice call made using a telephone service.

“harvested-address list” means a list, collection or compilation of electronic addresses where the production of the list, collection or compilation is, to any extent, directly or indirectly attributable to the use of address-harvesting software.

“message” means information in the form of text, data, images, sounds or any other form or combination of forms.

“person” means an individual, partnership, corporation, trust, foundation, or an unincorporated organization or association of any kind.

“political party” means a political party that is registered under the Canada Elections Act or a comparable law of a province or foreign state.

“recipient”, in respect of an electronic message, means the person who is responsible for the e-mail account, instant messaging account, telephone account or similar account to which the message is sent.

“send” includes attempt to send.

“sender”, in respect of an electronic message, includes a person who authorizes the sending of the message, but does not include a telecommunications service provider who provides an access service that is limited to handling, transmitting or relaying the message.

“telecommunications service provider” has the same meaning as in the Telecommunications Act.

“unsubscribe facility” means an electronic address set out in a commercial electronic message to which the recipient can send an unsubscribe request to the person who sent or authorized the sending of the message.

“unsubscribe request” means an electronic message sent by the recipient of a commercial electronic message to the sender of that message to the effect that the recipient withdraws consent to receiving any further commercial electronic messages from or authorized by the sender.

(2) For the purposes of the definition “commercial electronic message” in subsection (1), it is immaterial whether it is lawful to acquire the goods, service, land or interest in land or to take up the business, investment or gaming opportunity, or whether the goods, service, land, interest in land, or business, investment or gaming opportunity exists.

(3) For the purposes of the definition “electronic message” in subsection (1), it is immaterial whether the message reaches its intended destination or that the address to which the message is sent is a non-existent electronic address.

(4) In this section, “non-existent electronic address” means a destination, expressed as a combination of letters, numbers or symbols, or any combination thereof, that appears to be an electronic address but that is not connected to an account that is inscribed, registered, owned or used by any person.

3. (1) A person who receives an economic benefit from the sending, by another person, of a commercial electronic message that advertises or promotes the trade, business, property, goods or services of the first-mentionned person is presumed, in the absence of evidence to the contrary, to have authorized the sending of the message.

(2) A telecommunications service provider does not authorize the sending of a commercial electronic message merely because it supplies a service that enables the message to be sent.

4. If a person sends a commercial electronic message from any place and it is received by another person in Canada, then, for the purposes of this Act, the act of sending is deemed to have taken place in Canada.

FORM AND CONTENT REQUIREMENTS

5. (1) A commercial electronic message shall

(a) clearly and accurately identify the person who is sending or authorized the sending of the message;

(b) contain readily-accessible and accurate header and routing information; and

(c) include readily-accessible and accurate information as to how the recipient of the message can easily contact the person who is sending or authorized the sending of the message.

(2) The information required under subsection (1) shall be valid for at least 30 days after the commercial electronic message is sent.

6. A commercial electronic message shall include a subject line that is not intended or likely to mislead the recipient about a material fact regarding the contents or subject matter of the message.

7. (1) A commercial electronic message shall include a functional unsubscribe facility and a clear statement to the effect that the recipient may use the unsubscribe facility to send an unsubscribe request to the person who sent or authorized the sending of the message.

(2) The unsubscribe facility

(a) shall be expressed and presented in a clear and conspicuous manner;

(b) shall allow the recipient to respond to the sender using the same method of communication that was used to send the commercial electronic message;

(c) shall be capable of receiving the unsubscribe request at all times during a period of at least 30 days after the message is sent; and

(d) shall not require the recipient to pay a fee to the sender of the message or to any other person in order to use the unsubscribe facility.

(3) Paragraph (2)(d) does not apply to any fee ordinarily charged by the recipient’s telecommunications service provider for handling, transmitting or relaying messages.

PROHIBITIONS

8. (1) No person shall send or authorize the sending of a commercial electronic message unless the recipient has consented to receiving the message.

(2) A recipient is presumed to have consented to receiving an exempt commercial electronic message from a sender unless the recipient has withdrawn such consent prior to the message being sent.

(3) In this section, “exempt commercial electronic message” means a commercial electronic message that is sent or authorized to be sent by

(a) a political party or an association of members of a political party for an electoral district;

(b) a nomination contestant, leadership contestant or candidate of a political party, or the official campaign of such a contestant or candidate;

(c) a registered charity within the meaning of subsection 248(1) of the Income Tax Act;

(d) a partnership, corporation, trust, foundation, organization or association no part of whose income is payable or otherwise available for the personal benefit of any of its proprietors, members or shareholders;

(e) an educational institution, if

(i) the recipient is, or has been, enrolled as a student at that institution, or

(ii) a member or former member of the recipient’s household is, or has been, enrolled as a student at that institution;

(f) a person who has an existing business relationship with the recipient;

(g) a person who has sent the message to the recipient for the sole purpose of collecting information for a public opinion poll or survey; or

(h) any other person prescribed by regulation.

9. The consent of a recipient to receiving a commercial electronic message may not be inferred from the fact that the recipient’s electronic address has been published or is otherwise generally available to the public unless

(a) the recipient is one of the following individuals and the electronic address enables the general public to send a message that is relevant to the individual’s work, business, functions or duties:

(i) an employee, director, partner or officer of a person,

(ii) a public office holder, or

(iii) a self-employed individual; and

(b) it would be reasonable to assume that the electronic address was published with the knowledge of the individual or person concerned.

10. (1) A recipient who has previously consented, or is presumed under subsection 8(2) to have consented, to receiving a commercial electronic message may withdraw consent to receiving any further commercial electronic messages from the sender by sending an unsubscribe request to the sender of the commercial electronic message or by any other means.

(2) The consent of a recipient to receiving commercial electronic messages from a sender is deemed to be withdrawn seven days after the day on which an unsubscribe request is sent by the recipient to the sender of the commercial electronic message.

11. No person shall send or authorize the sending of a commercial electronic message that does not meet the requirements set out in sections 5 to 7.

12. (1) Subject to subsection (2), no person shall supply, offer to supply, acquire or use address-harvesting software or a harvested-address list.

(2) Subsection (1) does not apply to a law enforcement agency, national security agency or other person prescribed by regulation.

13. No person shall send or authorize the sending of a commercial electronic message if the person knows or ought to know that the electronic address to which the message is sent was obtained

(a) using address-harvesting software;

(b) from a harvested-address list; or

(c) using an automated means that generates possible electronic addresses by combining letters, numbers or symbols or a combination thereof.

14. No person shall

(a) create a website or domain name that represents itself as being the website or domain name of another person without that other person’s authorization; and

(b) use that website or domain name to request or attempt to induce any person to send or provide any personal information or means of identification.

15. No person shall send or authorize the sending of a commercial electronic message that

(a) falsely represents itself as being sent by or on behalf of another person;

(b) includes a hyperlink or other means of directing or linking the recipient to an online location that falsely purports to belong to or be associated with that other person; and

(c) requests or attempts to induce the recipient to directly or indirectly send or provide any personal information or means of identification.

DUTY

16. Every person who knows, or ought to know, that their trade, business, property, goods or services are being or will be advertised or promoted in a commercial electronic message sent contrary to section 8 or 11, and who receives or expects to receive an economic benefit from the sending of the message, shall take reasonable measures to prevent the sending of the message and to report any contravention to an appropriate law enforcement agency.

ENFORCEMENT

Offences

17. (1) Every person, other than an individual, who contravenes subsection 8(1) is guilty of an indictable offence and liable

(a) for a first offence, to a fine not exceeding $500,000; and

(b) for a second or subsequent offence, to a fine not exceeding $1,500,000.

(2) An individual who contravenes subsection 8(1) is guilty of an indictable offence and liable

(a) for a first offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding two years, or to both; and

(b) for a second or subsequent offence, to a fine not exceeding $1,500,000 or to imprisonment for a term not exceeding five years, or to both.

18. (1) Every person, other than an individual, who contravenes section 11 is guilty of

(a) an indictable offence and liable to a fine not exceeding $1,500,000; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding $500,000.

(2) An individual who contravenes section 11 is guilty of

(a) an indictable offence and liable to a fine not exceeding $1,500,000 or to imprisonment for a term not exceeding two years, or to both; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding $500,000 or to imprisonment for a term not exceeding six months, or to both.

19. (1) Every person, other than an individual, who contravenes subsection 12(1), any of sections 13 to 16 or a provision of any regulation made under this Act is guilty of

(a) an indictable offence and liable to a fine not exceeding $1,500,000; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding $500,000.

(2) An individual who contravenes subsection 12(1), any of sections 13 to 16 or a provision of any regulation made under this Act is guilty of

(a) an indictable offence and liable to a fine not exceeding $1,500,000 or to imprisonment for a term not exceeding two years, or to both; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding $500,000 or to imprisonment for a term not exceeding six months, or to both.

20. Every person who knowingly counsels, induces, aids or abets or attempts to induce, aid or abet any person to contravene any of the provisions of this Act or the regulations commits an offence and is liable to the same penalty as that person.

21. If a corporation commits an offence under this Act, any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to, and guilty of, the offence and liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

22. In the prosecution of a person for a contravention of any provision of this Act, it is a defence for the person to prove that the contravention was due to inadvertence or based on an honest mistake of fact.

23. In determining the amount of a fine in respect of a conviction for an offence under this Act, the court shall have regard to all the relevant matters, including

(a) the nature and seriousness of the conduct that constituted the offence;

(b) the nature and extent of any loss or damage suffered as a result of the commission of the offence;

(c) the circumstances surrounding the commission of the offence;

(d) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct; and

(e) if the court considers that it is appropriate to do so, whether the person has previously been found by a court in a foreign state to have engaged in any similar conduct.

Ancillary Order

24. Where a person has been convicted of an offence under this Act and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence,

(a) the court may order the person to pay an additional fine in an amount equal to the court’s estimation of the amount of the monetary benefits; and

(b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Civil Action

25. (1) A person who is, or is about to be, adversely affected as a result of conduct that is contrary to any provision of this Act or the regulations may bring an action in any court of competent jurisdiction against the person who engaged in or is engaging in the conduct.

(2) In a proceeding brought under subsection (1), the court may grant any or all of the following remedies:

(a) an injunction;

(b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute an offence under this Act;

(c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent the continuation of an offence under this Act;

(d) damages to compensate the plaintiff for the monetary loss incurred by the plaintiff as a result of the defendant’s conduct;

(e) punitive damages; or

(f) any other appropriate relief, including the costs of the action.

(3) The court may grant a remedy under subsection (2) whether or not it makes or has made any other order under this Act in relation to the same conduct.

(4) In determining the amount of damages to be awarded to the plaintiff under paragraph (2)(d), the court may have regard to the following:

(a) the extent to which any expenses incurred by the plaintiff are attributable to the defendant’s conduct;

(b) the effect of the defendant’s conduct on the plaintiff’s ability to carry on a business or other activity;

(c) any damage to the reputation of the plaintiff’s business that is attributable to the defendant’s conduct;

(d) any loss of business opportunities suffered by the plaintiff as a result of the defendant’s conduct; and

(e) any other matters that the court considers relevant.

(5) Proceedings under subsection (1) must be brought within two years after the day on which the plaintiff became aware or should have become aware of the conduct on which the action is based.

TELECOMMUNICATIONS SERVICE PROVIDERS

26. (1) A telecommunications service provider may, upon giving reasonable notice, refuse or cancel service or access to any person who has been convicted of an offence under this Act or who sends commercial electronic messages that the provider has reasonable grounds to believe are sent in contravention of this Act.

(2) A telecommunications service provider may, upon giving reasonable notice, filter or block some or all commercial electronic messages originating through another telecommunications service provider that hosts or facilitates any person who sends commercial electronic messages that the first-mentioned provider has reasonable grounds to believe are sent in contravention of this Act.

(3) A telecommunications service provider acting in good faith under subsection (1) or (2) is not liable to any person for any loss or damage resulting from the refusal, cancellation, filtering or blocking.

REGULATIONS

27. The Governor in Council may make regulations prescribing any matter or thing that by this Act is to be or may be prescribed and generally to carry out the purposes and provisions of this Act.

COMING INTO FORCE

28. This Act comes into force 30 days after the day on which it receives royal assent.