Canada's new anti-spam and online fraud act (commonly known
as "CASL") and the American Controlling
the Assault of Non-Solicited Pornographic And Marketing Act of 2003
(commonly known as "CAN-SPAM") both
regulate unsolicited electronic communications, but there are
significant differences between the two laws. CASL establishes one
of the strictest anti-spam regimes in the world, with a much
broader scope of application than CAN-SPAM and with restrictions
and requirements that are far more onerous than those under
Following is a summary of the key differences between CASL and
CAN-SPAM with respect to the regulation of unsolicited commercial
Messages: CASL applies to any electronic
message (email, text, sound, voice or image) sent to an electronic
address (email, instant message, telephone or similar account).
CAN-SPAM applies to electronic mail only.
Commercial Purpose: CASL applies to an
electronic message if one of its purposes is to encourage
participation in a commercial activity (a transaction, act or
conduct of a commercial character) whether or not in expectation of
profit. CAN-SPAM applies to a message only if its primary purpose
is commercial advertisement or promotion of a commercial product or
Extra-Territorial Application: CASL applies if
a computer system in Canada is used to send or access a regulated
message, subject to limited exceptions. The extra-territorial
application of CAN-SPAM is not specified.
Consent: CASL is an opt-in regime, which
prohibits sending a regulated message unless the recipient has
given consent (express or implied in limited circumstances),
subject to limited exceptions, and a regulated message cannot be
used to request consent to receive future regulated messages.
CAN-SPAM is an opt-out regime, which permits sending a regulated
message unless the recipient has previously opted out of receiving
Information Disclosure for Express Consent:
CASL requires that a request for express consent to receive a
regulated message include disclosure of prescribed information
(purpose of consent, name and contact details of persons requesting
consent, and statement that recipient can withdraw consent).
CAN-SPAM does not require express consent or related information
Implied Consent: CASL recognizes implied
consent to receive a regulated message in limited circumstances,
many of which are time limited and subject to withdrawal of
consent. CAN-SPAM generally recognizes implied consent where the
recipient has not opted out of receiving a regulated message.
Formalities: CASL and CAN-SPAM both require
that certain information and an unsubscribe mechanism be included
in a regulated message, but those requirements are different.
Exceptions: CASL and CAN-SPAM both recognize
various exceptions to certain restrictions and requirements, but
the exceptions are different.
Vicarious Liability: CASL imposes vicarious
liability on corporate directors and officers (who are personally
liable if they direct, authorize or assent to, or acquiesce or
participate in, a contravention of CASL) and employers (who are
liable for acts of employees/agents within scope of their
employment/agency), subject to a due diligence defence. CAN-SPAM
does not expressly impose vicarious liability.
Private Civil Action: CASL allows any
individual or organization affected by a contravention of CASL to
sue for compensatory damages and a penalty of $200 per
contravention to a maximum of $1 million per day, and class
proceedings are possible. CAN-SPAM allows affected Internet access
service providers to sue for statutory damages.
CASL is expected to come into force in late 2013 or early 2014,
after all required regulations have been finalized.
American organizations that send commercial electronic messages
to recipients in Canada must comply with CASL, unless limited
exceptions apply, or risk potentially severe consequences,
including administrative penalties (up to $1 million per violation
for individuals and up to $10 million per violation for
organizations). Due to the significant differences between
CASL's opt-in regime and CAN-SPAM's opt-out regime,
CAN-SPAM compliance practices will not ensure compliance with CASL.
Accordingly, American organizations that send commercial electronic
messages to recipients in Canada should now be preparing to comply
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