Despite the fact that Canada's Anti-Spam Law ("CASL") was enacted almost three (3) years ago, its implementing regulations just went into effect on July 1, 2014.
CASL Generally
In comparison to the CAN-SPAM Act, CASL is a much more restrictive law, encompassing a wider variety of communications. While the CAN-SPAM Act only targets communications sent via e-mail, CASL regulates any electronic message delivered in connection with a commercial purpose, whether or not the person who transmits the message does so with the expectation of earning a profit. This includes almost all messages sent electronically, including e-mail, text messages and social media messages that endeavor to communicate, market or sell products and/or services to Canadians.
Most importantly for our readers is the fact that CASL's regulations apply to all commercial electronic messages ("CEM") received within Canada, regardless of where they are sent from. This means that United States marketers could be held liable for CASL violations.
CASL Consent Requirements
We have written extensively about the CAN-SPAM Act and its consent requirements. In this post, we highlight the fact that the consent requirements under CASL differ significantly from those of CAN-SPAM. In contract to CAN-SPAM, which simply requires consumers to "opt-out" of receiving commercial e-mails, CASL restricts the sending of any CEMs, unless consumers have "opted-in" to receiving the CEMs and provided their CASL-compliant express or implied consent.
CASL Express Consent
Express consent under CASL must be clearly and simply indicated. Those seeking to gain express consent must make clear to the recipient the full corporate names of the entities seeking consent, including their mailing addresses and either a contact telephone number, email address or web address. Additionally, the consent language must include a statement informing the recipient that he/she can withdraw consent at any time by using the contact information provided.
As a best practice, it is recommended that entities seeking consent ensure that consumers indicate their consent by taking some type of affirmative action, such as entering their e-mail addresses or phone numbers or checking an unpopulated box adjacent to the consent language. Proof of consent should be maintained for a minimum of three (3) years to avoid liability under CASL.
CASL Implied Consent
Consent under CASL will be implied under three (3) circumstances:
- when there is a prior business relationship between the sender and recipient consummated within the last two (2) years;
- when the recipient has conspicuously published his or her electronic contact information, without including a statement that he or she does not wish to receive CEMs; and/or
- when the recipient has disclosed his or her electronic contact information directly to the sender, without indicating that he or she does not wish to receive CEMs.
Due to enforcement implications that can extend outside the borders of Canada, businesses that conduct e-mail, text message and/or social media marketing throughout North America should take heed of CASL's regulations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
