The government is close to finalizing new rules for marketing by e-mail, text messaging and other forms of electronic communication, which will impact the way REALTORS® communicate with clients. When the proposed rules were before Parliament in an anti-spam bill, CREA won important concessions. There may be additional modifications, and CREA continues to follow this issue closely.
In order to get prepared, here are ten things REALTORS® need to know:
1) With a few exceptions, REALTORS® will no longer be able to send electronic messages to clients or potential clients without their consent.
2) Consent will be implied for REALTORS® to send electronic messages to a client for two years following a real estate transaction and six months after an inquiry from a potential client.
3) A transitional provision allows REALTORS® to send electronic messages to clients without their consent for three years, provided the relationship existed before the new rules come into force.
4) The onus is on the REALTOR® to prove consent; therefore you must document that consent has been obtained by a recipient.
5) When obtaining consent, REALTORS® must set out the purpose for which the consent is being sought, as well as information identifying them. More details about obtaining consent will be included in the regulations issued for the legislation, which have not been drafted yet.
6) REALTORS® will need to ensure each electronic message contains their contact information, an unsubscribe mechanism, and any other information set out in the forthcoming regulations.
7) Consent will be implied and REALTORS® will be able to follow up by email with new contacts they meet at networking functions, so long as the electronic message is relevant to the recipient’s business.
8) Consent will not be implied for REALTORS® to follow up on a referral unless the potential client provides their express consent, or has a personal, family or existing business relationship with the REALTOR®.
9) REALTORS® who fail to comply with these new electronic marketing rules could face administrative monetary penalties of up to $1 million for individuals and $10 million for corporations. In addition, individuals who receive unsolicited electronic marketing materials from a REALTOR® could launch a private right of action and sue for monetary compensation.
10) Telephone marketing continues to be governed by the Do Not Call List rules. In the future, the government may include telephone marketing under the same electronic marketing compliance regime.