Canada: Getting Ready For Canada's Anti-Spam Legislation (CASL)

Try green regs and ham (even if you do not like them).

As outlined in our May 2011 bulletin "Are You Prepared for Canada's New Anti-Spam Law?", almost every business and organization in Canada will be affected by Canada's new anti-spam legislation1 ("CASL"), and should be aware of its key components and have a plan for determining compliance requirements and implementing a compliance program, where appropriate.

At the time of our May 2011 bulletin, CASL was expected to take effect later in 2011. There have been many delays for the Federal Government in bringing CASL into effect, but we are slowly getting closer to implementation. At the Canadian Marketing Association's CASL update webinar on February 12, 2013, a senior official at Industry Canada suggested that CASL may not come into effect until at least Q3 2014. This tentative prediction was echoed by many stakeholders attending the Marketing Magazine "Understanding Privacy in 2013" conference in Toronto on February 28, 2013.

Whenever CASL comes into force, one thing is clear – now is the right time for those that will be affected to get up to speed with the requirements of CASL and make a plan for compliance, if this has not already occurred. Ignoring CASL is not a viable option - the offences in it are broad and the penalties for non-compliance2 are significant (the maximum penalty for a violation is $1,000,000 for an individual and $10,000,000 for a business3). Moreover, directors or officers may be personally liable for their company's violations, and there is also a separate right for affected individuals to bring a claim for compensatory damages arising from the violation.

What is CASL all about?

In a nutshell, CASL prohibits:

a. spamming - the sending of unsolicited commercial electronic messages ("CEMs") whether in the form of e-mail, text messages, social media or other means of telecommunication (section 6);

b. hacking - the unauthorized altering of transmission data (section 7);

c. malware - the installation of computer programs without consent that result in phishing4, pharming5 and/or spyware6 (section 8);

d. fraud - the making of deceptive representations online, including representations on websites and in CEM addresses (section 75);

e. harvesting - the use of computer systems to collect electronic addresses without consent (section 82(2)); and

f. privacy invasions - the unauthorized access to a computer system to collect personal information without consent (section 82(3)).

On the anti-spam side, simply stated, CASL provides (in section 6) that CEMs must not be sent without: (a) the recipient's consent (express or implied) and (b) the inclusion of certain required elements (such as an unsubscribe mechanism), unless a specific exception applies. CASL further provides (in sections 7 and 8, respectively) that transmission data cannot be altered without authorization and that computer programs (which, for example, interfere with the user's control or with settings) cannot be installed on someone's computer system without their prior express consent, unless a specific exception applies or consent may be implied where permitted under CASL (collectively, the "prohibitions in sections 6-8").

What is the current status of CASL?

CASL was granted Royal Assent on December 15, 2010, but its key provisions have not yet been proclaimed into force. Industry Canada has said that those key provisions will not come into force until both the CRTC Regulations and the Industry Canada Regulations under CASL (known formally as the "Electronic Commerce Protection Regulations") have been finalized.

It is often said that "the devil is in the details" and these two sets of regulations provide important details about how key terms in CASL (such as "personal relationship" and "club, association or voluntary organization") will be interpreted and, thus, the circumstances in which the prohibitions in sections 6-8 will not apply at all or in which consent to receive a CEM will be implied.7

Similarly, CASL allows for further8 exceptions to the general consent requirement to be specified in the regulations, and for the details of the required elements of CEMs to be specified in the regulations (for example, the details of the required "unsubscribe mechanism").

The CRTC Regulations were finalized in March of 2012, following a lengthy consultation process.

The Industry Canada Regulations have not been finalized. Industry Canada went through an initial consultation period from July 9, 2011 to September 7, 2011 with its first draft of proposed regulations (during which it received 23 submissions from stakeholders who consented to having their submissions posted publicly). On January 5, 2013, Industry Canada published revised draft CASL regulations and invited comments with the consultation period ending February 4, 2013. During this second round of consultations, Industry Canada received over 250 submissions. On March 7, 2013, 119 of these submissions were, with submitters' consent, posted on the Government of Canada's CASL website. Two senior Industry Canada officials are now working through the submissions with the aspiration of getting the finalized Industry Canada Regulations under CASL ready for publication in the Canada Gazette around June 2013.

That said, it may be a tall order for Industry Canada to meet this aspirational timeline as, from the submissions made public thus far, there seem to be many serious concerns of business still left unaddressed which may have far reaching negative consequences for businesses, organizations and consumers which Parliament did not intend. For instance, there are several submissions to the effect that:

a. consents under current federal and provincial privacy laws - (i.e., under the Personal Information Protection and Electronic Documents Act and its substantially similar counterparts in BC, Alberta and Québec), if not grandfathered under the CASL regulations, should at least be added as an exemption during the three-year transition period;

b. CEMs on closed and proprietary networks (which arise through rule-based voluntary relationships and permit the recipient to control from whom they receive electronic messages) should be exempt from CASL;

c. CEMs sent into a foreign jurisdiction that comply with the legal requirements of that foreign jurisdiction should be excepted from CASL;

d. messages under section 6(6) of CASL that are excepted from the consent requirement (because there is an already-established ongoing relationship between the sender and the recipient) should be excepted from the unsubscribe mechanism (as, in that context, such a mechanism in an ongoing relationship that's meant to continue as such serves no useful purpose and would only cause confusion); and

e. after all of the Electronic Commerce Protection Regulations have been finalized and after all relevant guidelines have been issued, at least a 12-month period should be required before CASL comes into force to allow businesses to prepare for the application of the new law.

A flowchart depicting how CASL will operate, at least under the CASL regulations as currently published, appears at the end of this article.

The finalized Electronic Commerce Protection Regulations (CRTC) (the "CRTC CASL Regs")

The CRTC CASL Regs specify the following required elements for CEMs:

a. the name by which the sender of the CEM carries on business or the sender's actual name;

b. the name (business or actual) of the person on whose behalf a CEM is sent;

c. a statement clarifying who is sending the CEM and who it is being sent for; and

d. contact information for the sender (or person it is sent for) – namely, mailing address and either a telephone number (with voice mail), e-mail or web address.

The CRTC CASL Regs allow items (a) to (d) above as well as the unsubscribe mechanism to be posted on a web page (readily accessible via a clear and prominent link), in circumstances where it is not practicable to include these items in the CEM itself. Section 11 of CASL requires that the web page be valid for a minimum of 60 days and that any unsubscribe request be honoured without delay and in any event within ten business days.

The CRTC CASL Regs also specify that the unsubscribe mechanism must be set out clearly and prominently and must be able to be readily performed.

The CRTC CASL Regs provide detail about how express consent must be sought – consent may be obtained orally or in writing and must be sought separately for each act described in sections 6 to 8 of CASL (for example, separate consent must be sought for sending CEMs and for installing a program on another person's computer system). The request for consent must also include information such as the name of the person seeking consent (or the name by which they carry on business), the name (business or actual) of the person on whose behalf a message is sent, a statement clarifying who is sending the CEM and who it is being sent for, contact information for the sender (or person it is sent for); namely, mailing address and either a telephone number (with voice mail), e-mail or web address, and a statement that consent may be withdrawn.

In circumstances where a computer program to be installed on a person's computer system performs certain specified functions (such as collecting personal information stored on the system or changing or interfering with settings or preferences), these facts must be separately and specifically brought to the attention of the person from whom consent is sought and a written acknowledgement is required from the person consenting, stating that they understand and agree that the program to be installed performs the specified functions.

The CRTC has also issued Guidelines (CRTC 2012-548 Guidelines on the interpretation of the Electronic Commerce Protection Regulations and CRTC 2012-549 Guidelines on the use of toggling as a means of obtaining express consent under Canada's anti-spam legislation) on how it intends to interpret the CRTC CASL Regs. For example, the CRTC has clarified that a person who may facilitate the distribution of a CEM, but who has no role in the CEM's content or the choice of the recipients (for example, an email service provider), need not be identified in a consent request. However, an organization which delivers advertising content to its own subscribers would need to identify itself as well as all advertisers when seeking consent.

The Guidelines also state that in order to comply with the express consent provisions in CASL, a user must be required to actively check a box or click an icon – pre-checked boxes will not be considered valid for obtaining express consent.

Consent requests cannot be subsumed in, or bundled with, requests for consent to the general terms and conditions of use or sale – a user must be able to consent to the general terms of use or sale while still being able to refuse consent to receiving CEMs.

The revised draft Electronic Commerce Protection Regulations (Industry Canada) (the "IC Draft CASL Regs")

The IC Draft CASL Regs set out several new proposed exceptions to the prohibitions in section 6. For example, an exception is proposed for any CEM sent in response to a request, inquiry, complaint or otherwise solicited by the person to whom the message is sent.9

An exception is also proposed for CEMs sent between employees, representatives, contractors or franchisees of an organization where the message concerns the affairs of the organization. In addition, CEMs sent by an employee (representative, etc.) of one organization to an employee (representative, etc.) of another organization in circumstances where the organizations have a business relationship and the message concerns the affairs of the organization or a person's role or duties within the organization would also be excepted. These proposed exceptions are meant to address the unintended application of CASL to ordinary, transactional business communications.

The IC Draft CASL Regs also except any CEMs sent to satisfy a legal obligation or enforce a legal right.

As well, the IC Draft CASL Regs allow for an individual to send a single CEM to someone without consent where this is based on a third party's referral, so long as the sender discloses the name of the person making the referral and so long as there is an existing business, non-business, personal or family relationship between the person making the referral and each of the sender and the recipient. So, for example, a friend (Susan) of an individual (Joe) could suggest to her accountant that the accountant send an e-mail to Joe offering the accountant's services. So long as the accountant sends one unsolicited e-mail only to Joe and states in the e-mail that Susan referred the accountant to Joe, the accountant will not have violated CASL in this situation.

The IC Draft CASL Regs also define "family relationship" and "personal relationship" – this is important because CEMs sent between persons who have a personal or family relationship are excepted from the section 6 prohibitions. Under the IC Draft CASL Regs, persons who have had a "direct, voluntary, two-way communication" will qualify as having a personal relationship where it is reasonable to conclude that the relationship is personal based on all relevant factors, including the sharing of interests, experiences and opinions (evidenced in the communications), the frequency of communications, the length of time since the parties communicated and whether the parties have met in person. This definition may allow some relationships formed solely on electronic communications (e.g., Facebook) to qualify for an exception to the section 6 prohibitions.

What can businesses and organizations do now to prepare?

Given that the IC Draft CASL Regs have not been finalized, we do not yet have a complete picture of CASL. And, we still do not know for sure when that picture will be completed. However, there are still several useful steps that can be taken now.

When in force, CASL and its regulations will create a complex web of requirements and exceptions, and it will be an onerous task to determine which exception might apply in what circumstances. However, CASL clearly allows CEMs to be sent with prior express consent. Given that CASL won't be in force for some time yet and given that CASL will allow a transition period for compliance once it is in force, businesses and organizations would seem to have ample time to seek and obtain express consents from those on its mailing lists for CEMs.

More specifically, with respect to CEMs, the most useful steps that a business or organization can take now in anticipation of CASL are:

  • Taking Inventory of Existing CEM-Recipients Databases - identifying what kinds of CEMs are currently being sent, what form these CEMs take, to whom they are sent, and why are they sent;
  • Confirming Consents - checking existing consent mechanisms and consent wording in relation to these CEMs to determine where under CASL the consent that has been obtained is express or where it may be implied (e.g., in the case of an existing business relationship, an existing non-business relationship or where the intended CEM recipient has conspicuously disclosed or published their electronic address without indicating that they do not wish to receive unsolicited CEMs);
  • Identifying Exceptions - categorizing (with appropriate supporting information) CEM recipients who fall under one or more of the exceptions to CASL such as where the sender (a) has a family or personal relationship with the recipient, (b) is responding to the recipient's request, inquiry or complaint, (c) is enforcing a legal right, (d) is sending a business-to-business CEM (within and between firms) in the context of an ongoing business relationship, or (e) is a foreign business sending a CEM to a foreign recipient who accesses the CEM while roaming in Canada;
  • Establishing Robust Data Management - ensuring, where consents to receive CEMs may only be implied, the system for managing all of the data for CASL compliance has the capability to manage the pertinent two-year and six-month time limits under CASL going forward - for instance, unless upgraded to express consent, for each implied-consent recipient, there will need to be a "stop send" date in the system;
  • Upgrading to Express Consents - sending out CASL-compliant requests for opt-in express consents where the consents are only implied or otherwise don't meet CASL's express consent requirements;
  • Ensuring CASL-Compliant Unsubscribes - making sure working unsubscribe mechanisms and notices are in place and meet all existing CASL requirements (i.e., that the mechanism is functional for at least 60 days, is available at no cost to the recipient, uses the same means as the original CEM unless impracticable, includes either an electronic address or a link to which the unsubscribe may be sent, and is processed without delay and, in any event, within ten business days); and
  • Auditing Social Media Messages - reviewing all social media communications (including the functionalities of all messaging and where messages are sent) to determine when such communications are not caught by CASL and when they are caught what is required for compliance.

If we can assist your business or organization in understanding and applying the "green Regs and (anti) spam" to your particular situation, we would be pleased to do so.

How CASL Will Operate


1. S.C. 2010, c. 23. With no official short title, CASL is formally known only by its inelegant full title: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

2. The administrative monetary penalties ("AMPs") may be levied by the CRTC by way of a "notice of violation" which sets forth the amount of the AMP. The notice recipient may then make representations as to whether a violation occurred and/or challenge the amount of the AMP.

3. These AMPs are per violation, and the CRTC has the authority to make regulations designating violations as being separate for each day of non-compliance.

4. "Phishing" is attempting to acquire sensitive information (passwords, credit card numbers, etc.) by masquerading as a trustworthy entity in an electronic communication.

5. "Pharming" involves a technological attack meant to redirect a person from an intended website to a fraudulent version of that website.

6. "Spyware" is software that surreptitiously gathers information about someone and relays that information to someone else, or that takes control over a computer, without knowledge or consent.

7. It is important to note that "implied consent" is not an open concept under CASL and is only recognized in certain specified situations. Section 10(9) of CASL sets out the only circumstances where consent for receipt of a CEM will be implied. For example, consent will be implied where the sender and recipient have an "existing business relationship" or an "existing non-business relationship". For example, implied consent will exist when there is a business relationship arising from the purchase of a good or service within the two-year period immediately before the day on which the message is sent.

8. That is, exceptions which are additional to the exceptions set out in section 6 of CASL itself. The exceptions set out in CASL include exceptions to the consent requirement where a CEM solely (a) provides a requested quote or estimate for the supply of goods or services, (b) facilitates or confirms a previously agreed to commercial transaction, (c) provides warranty, product recall or safety information about a purchased product or service, (d) provides factual information about a subscription, membership, account, or similar relationship, (e) provides information directly related to an employment relationship or related benefit plan, or (f) delivers a product, including updates or upgrades pursuant to a transaction. The exceptions set out in CASL also include exceptions to the prohibitions in sections 6-8 where the CEM is sent to an individual with whom the sender has a "personal or family relationship" or to a person engaged in a commercial activity and consists solely of an inquiry or application related to that activity.

9. If brought into force, this would be a broader exception than the existing implied consent provision in CASL which is connected to "existing business relationships".

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions