In a few days, on July 1, 2014, Canada’s new anti-spam law comes into effect. It will probably affect many professional photographers.
Two things to remember: (i) the law is brand new and nothing has been tested in court, and (ii) I’m not a lawyer.
Basically, the law states that a business cannot send a commercial electronic message without having the recipient’s prior consent.
What’s a “commercial electronic message”?
Essentially, it’s an electronic message sent by *any means* of telecommunication including, but not limited to, e-mail, text message, instant message and even a phone call, and which makes a business offer or promotes a business or business person.
A business message sent by something like Twitter, LinkedIn messaging or Skype might be considered a commercial electronic message depending on the situation. A banner ad on a web page is not considered to be a commercial electronic message.
For a period of 36 months, starting on July 1 2014, it will be assumed that you have “implied consent” from anyone with whom you’ve had a business relationship in the past two years, unless that person withdraws their consent sooner.
This same 36-month period of implied consent also applies to someone with whom you don’t have a business relationship but to whom you’ve already sent a commercial electronic message(s) in the past. (This seems quite vague and will probably be open to abuse).
After this 36-month transition period, you will need to have “express consent” from everyone you wish to send a commercial electronic message.
A few things to note:
• If someone sends an enquiry and you respond, (for example, they request a photo quote), that’s not a commercial electronic message.
• If you send an invoice to a customer, that’s not a commercial electronic message.
• If a customer is slow to pay an invoice and you e-mail them about the late payment, that’s not a commercial electronic message.
• If you correspond with a customer about an assignment, (for example, to talk about the photography, the editing, the delivery, etc.), that’s not a commercial electronic message.
• But, if you’re trying to solicit work by sending out promotional e-mails, then these e-mails are commercial electronic messages.
If you’re planning to send a commercial electronic message, you must do all of these:
(1) Obtain prior consent. Consent must be opt in not opt out. [Added July 5: A few Canadian companies are already failing at this by doing only opt out.]
(2) Include identification information about you and your business.
(3) Provide an unsubscribe mechanism.
The new law also affects Canadian photographers who send “commercial electronic messages” to recipients in some other countries. For example, if you send unsolicited promotional e-mails to the USA, you must conform to the USA’s oddly-named CAN-SPAM Act (or here). The Canadian law might have some similarities with the CAN-SPAM Act but the two are not the same.
Canada’s new anti-spam law does not apply if the recipient is someone with whom you have a “personal relationship”. So feel free to spam your mother. Or maybe not.
