Update to eMarketers: Canada’s FISA Broader than US’s CAN-SPAM Act

Last late year, Canada enacted the Fighting Internet and Wireless Spam Act (FISA).  The framework established by FISA is fundamentally different from the United States’s CAN-SPAM Act.  First, while CAN-SPAM applies only to commercial email, FISA applies to any form of electronic message sent for marketing purposes (referred to as a “Commercial Electronic Message,” or “CEM”), including: email; SMS; instant messaging; and social media/networking. U.S. regulations have not to this point targeted communications with customers across social media.

Second, and perhaps more significantly from the standpoint of most U.S. firms, FISA requires affirmative consent from a potential recipient of a message before marketers can send a CEM.  This feature of the law stands in sharp contrast to CAN-SPAM, which permits at least “one free shot” at a recipient, provided that the message itself is CAN-SPAM compliant (ie. the message includes opt-out instructions, clearly identifies the sender, identifies itself as commercial email, etc.).

Accordingly, U.S. companies now will need to differentiate their approach to marketing to Canadian customers from their approach to marketing to U.S. customers in order to ensure compliance with both the Canadian and U.S. statutes.  Commonly utilized techniques for acquiring contact information, such as list rental, if used to market to Canadian customers, now have the potential to expose marketers to a violation of FISA.

The good news is that the Canadian law contains a broad definition of “Consent.”  “Consent” can either be “express” or “implied” and can also include circumstances in which (i) the sender has a business relationship with the recipient, (ii) the recipient has published its electronic address in a prominent manner, or (iii) the recipient has provided its email address directly to the sender.   The conventional wisdom is that a customer who provides an email address in connection with placing an order, for example, has implicitly consented to the receipt of commercial emails.

In short, those merchants who email Canadian customers would do well to take a second look at their method of acquiring emails, and undertake to determine whether their current practices comply with this new requirement.