Canada's Anti-Spam Legislation (CASL) restricts the
ability of organizations to send commercial electronic messages
without the consent of the recipient.
A critical step in the decision tree is, therefore, to determine
what constitutes a "commercial electronic message".
Here's the definition of a "commercial electronic
message" in subsection 1(2) of CASL:
(2) For the purposes of this Act, a commercial electronic
message is an electronic message that, having regard to the content
of the message, the hyperlinks in the message to content on a
website or other database, or the contact information contained in
the message, it would be reasonable to conclude has as its
purpose, or one of its purposes, to encourage participation in a
commercial activity, including an electronic message
(a) offers to purchase, sell, barter or lease a product,
goods, a service, land or an interest or right in land;
(b) offers to provide a business, investment or gaming
(c) advertises or promotes anything referred to in paragraph
(a) or (b); or
(d) promotes a person, including the public image of a
person, as being a person who does anything referred to in any of
paragraphs (a) to (c), or who intends to do so.
When designing a compliance policy, care must be taken not to
consider the items listed in (a) to (d) as being exhaustive.
Instead, the critical part of the definition is the portion that is
bolded –that is, "it would be reasonable to conclude
[that the message] has as its purpose, or one of its purposes, to
encourage participation in a commercial activity".
"Commercial activity" is broadly, albeit ambiguously
defined in subsection 1(1). A commercial activity does not require
profit-making or even a profit-making motive. It involves any
transaction, act or conduct or regular course of conduct that is of
a "commercial character".
The difficulty for organizations, particularly non-profit
organizations, is that determining what is of a "commercial
character" is not straightforward. Indeed, this seems to be
acknowledged by the need to expressly exclude such activities as
law enforcement, public safety, the protection of Canada and the
conduct of international affairs or the defence of Canada.
Historically, Canadian courts have interpreted
"commerce" as any activity involving the exchange for
money, or by barter, of products. The debate has been whether a
one-off transaction would be considered commerce. CASL seems to
suggest that even a one-off transaction could be commerce, given
the reference to a "particular" transaction, act or
conduct. In the context of CASL, any electronic message that
"encourages participation" in a commercial activity will
be a CEM.
If a broad scope is given to the meaning of "commercial
character", the definition may sweep in many types of messages
that would not be commonly understood as such. For many
organizations, branding is critical. Emails will frequently include
at least some form of information to invite the reader to visit a
website for a hyper-link or announce or promote a product
or service. Once CASL comes into force, it will be important for
organizations to have strict controls over the content of
electronic messages and approvals for content. Choices may need to
be made between promotional "add-ons" and ensuring
consent is obtained or the organization has a viable exception to
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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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