PRIVACY MATTERS with Meaghan McCluskey


ISSUES SOCIAL


New federal legislation just might change how Canadian businesses use social networking sites to market themselves to both current and potential customers


provide for the sending of commercial elec- tronic messages if the recipient has con- sented to receiving it and certain content requirements are met (e.g., identifying the sender and setting out an unsubscribe mechanism). Furthermore, it can be implied that an individual consents to receiving the message where an existing business rela- tionship exists between the company and the individual receiving the message, as well as if the individual has published their elec- tronic address and it is not accompanied by a statement that they do not wish to receive unsolicited messages.


hen the introduction of social net- working sites exploded in popu- larity several years back, many companies saw the risk to their business in terms of employees potentially sharing confidential information and as a new avenue for viruses to enter corporate networks.


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Since then, companies have seen the benefits of social networking, both as a tool for facilitating intra-office communi- cation and as a way to create dialogue with existing and potential customers. However, a new bill introduced in the House of Commons may impact how Canadian companies use these social media sites.


The Fighting Internet and Wireless Spam Act, Bill C-28 prohibits the sending of a commercial electronic message to an electronic address; a business that


14 SECURITY MATTERS • JULY/AUGUST 2010


contravenes this prohibition could be facing both a penalty of up to $10 million and a civil action on behalf of those ag- grieved. Commercial electronic messages are messages sent by any means of telecommunication (including text or image messages) that encourages partic- ipation in a commercial activity, such as advertising or promoting a good or service. The definition of an electronic address is an address used in connection with an e- mail, instant messaging, telephone or sim- ilar account. The definitions provided by Bill C-28 make clear that promotional messages sent by companies to potential customers through social networking sites will be subject to this prohibition. Companies who do engage in these pro- motional messages may not be wholly shut out of using social networking sites as an advertising vehicle because Bill C-28 does


These two circumstances that provide for implied consent may be sufficient to allow companies to continue using social networking sites as a means of communi- cating with customers. Existing customers may fall within the existing business rela- tionship provision and potential customers may, by virtue of their e-mail being posted on a social networking profile, fall within the second implied consent provision. Although Bill C-28 is just in the begin- ning stages of the legislative process, companies must consider how it will affect their operations. In the meantime, com- panies should also review the terms of service for social networking websites, as these terms may place limits on a com- pany’s messaging abilities beyond any pri- vacy law restrictions.


Meaghan McCluskey is a privacy research lawyer with Nymity Inc. (www.nymity.com), a provider of PrivaWorks, a privacy support tool.


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