Q&A: C-28 – How do I know you’re in Canada?

I received this question today about C-28 and it’s been a while since I posted a Q&A so I thought it would be fun to start these up again…

Q: Dear EmailKarma.net,

I don’t see anything mentioned (in C-28) about how you are responsible as a sender to know if the person you are sending to resides in Canada. I have two questions about this?

1) I guess the logical answer is clients need to capture this at time of sign up?
2) In court, can a sender say as a defense “I had no idea they lived in Canada’ ?

Thanks!
C

A: C,

Thanks for your question. Here is my best non-legal advice.

1 – Your right, there is no real sure fire way to know where the recipient is located or where they are reading their emails from. You could easily start with all .ca domains, the major telcos in Canada; Rogers.com, Sympatico.ca, Telus.com etc… but your list would get large really fast and likely you’d miss all the hosting companies like Tucows/OpenSRS (one of Canada’s largest – possibly the largest hosted email platform for consumers and business) where users can host their own domains from virtually any TLD. IPs are also a good start but again not 100% accurate as mail could be sent to a Canadian but received at an international mail host (i.e. gmail apps, or godaddy).

Best options include:

  • Ask recipients at the time of sign up
  • Run a profile update on your data base to gather geographical location (Think better targeting and segmentation by country) and advance your email program at the same time with country specific holiday or sale information
  • Treat all subscribers like they are in Canada. This will ensure your mail is complaint in most jurisdictions around the world with anti-spam legislation.

#2 – Ignorance is not likely a defense that will ever stand up in court.

As per the Wikipedia:

Ignorantia juris non excusat or Ignorantia legis neminem excusat (Latin for “ignorance of the law does not excuse” or “ignorance of the law excuses no one“) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content. […] and in European law countries with a tradition of Roman law may also use the expression nemo censetur ignorare legem: nobody is taught to ignore the law.”

Speculation is that enforcement of C-28 will being in the later half of 2011, start now to get these changes moving in your email program.

Hope this helps and thanks for your question.

Matt

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Author: Matt V - @emailkarma

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1 Comment

  1. I agree with your answer and would like to add to it a bit.

    1. If you are based in Canada treat all subscribers as if they are from Canada
    2. If you are in the US and market nationally you can expect Canadians to be in your database so follow CAN-SPAM and the Canadian nuances as a best practice.
    3. If you are outside Canada and the US and know you will have people from many different legal jurisdictions (countries) as subscribers you should capture “Country” as a data point for segmentation. Unless you want to have multiple different subscriber profiles based on anti-spam and permission laws in their country you should also consider complying with the Canadian law – or the most stringent you come across – to ensure best practices around permission and anti-spam.

    Bottom line? Just as you said: Treat all subscribers like they are in Canada.

    Happy Holidays!!!

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