Transition periods for new legislation are often critical in
taking the sting out of compliance costs. But some transition
periods are better than others. In the case of Canada's
Anti-Spam Legislation (CASL), organizations should consider
the transition periods – not only what the cover, but also
what they don't. There are definitely winners and losers.
When CASL eventually comes into force, there will be two
separate transition periods. The first is for consent to commercial
electronic messages (CEMs) and the other is for the installation of
computer programs. This Spam Smart Tip examines the transition
period for CEMs and existing business relationships.
Section 66 provides for implied consent to CEMs for the shorter
three years after the coming into force of the legislation;
the recipient's "unsubscribe" or indication that
they no longer.
An organization may relied on the transitional implied consent
to CEMs if:
the person has an "existing business relationship";
that relationship includes CEMs
What's an "existing business relationship"? For
the purposes of the transition period, the existing business
relationships that will be applicable to most enterprises are ones
that arises out of:
the purchase or lease of a product, goods, a service, land or
an interest or right in land by the person to whom the message is
sent from the person who sent the message or caused the message to
be sent (the "purchaser / lease exception");
the acceptance by the person to whom the message is sent of a
business, investment or gaming opportunity offered by the person
who sent the message or caused the message to be sent (the
"investment / gaming opportunity exception");
a written contract entered into between the person to whom the
message is sent and the person who sent the message or caused the
message to be sent (and that is not already covered by the
purchaser / lease exception or the investment / opportunity
an inquiry or application made by the person to whom the
message is sent to the person who sent the message or caused the
message to be sent regarding the purchaser / lease exception or the
investment / gaming opportunity exception.
Usually, there is a sunset provision for an existing business
relationship under CASL. For example, an existing business
relationship in respect of an inquiry or application ends 6 months
after the inquiry or application for the purposes of implied
consent for any new relationships after CASL comes into force. But
that isn't the case for those existing at the time of CASL
coming into force. The sender may rely on implied consent for three
This is a significant transition period. Three years is a long
time to refresh consents for existing business relationships and
existing non-business relationships. Organizations may wish to
consider this in planning priorities in their compliance
However, the story isn't uniformly a good news one.
Organizations should also carefully review the scope of the
relationships captured by the transition period. The definition of
an existing business relationship certainly does not cover the
field of relationships that enterprises may have with individuals
to whom they send CEMs. Notably, the transition period may not be
of assistance to professions or enterprises with very long lead
times to make sales.
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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. Specific Questions relating to
this article should be addressed directly to the author.
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