Canada: Pharma In Brief - Life Sciences Companies And Canada’s New Law Governing Electronic Communications


Many of the provisions of Canada's  law governing commercial electronic messages (CEMs) will come into effect on July 1, 2014.  Colloquially referred to as Canada's Anti-Spam Legislation ("CASL"), its purpose is to "promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities...".  It has been called "the strictest anti spam legislation in the world".

While most life sciences companies, and particularly those selling prescription drugs which have restrictions on direct to consumer advertising, are not typically involved in unsolicited mass marketing efforts, CASL applies to CEMs between businesses. Moreover, there are several relationships that a life sciences company has  that need to be assessed for compliance purposes.  For example, while in company to patient relationships, consents are routinely obtained, they may not specifically allow for the receipt of emails from a company given that "consent" was obtained for other purposes. Dealings with vendors will be captured although for these existing relationships consent can likely be implied.  Companies using social media may also need consent, depending on the scope of activities undertaken.  Existing consents with the range of parties with whom a company deals need to be considered and the gaps addressed.

While the sections dealing with both administrative penalties and private rights of action will not come into force until 2017, companies should be considering what they need to do to comply now, given that common law remedies for breaches of privacy might be immediately available as of July 1, 2014.  We have prepared a decision tree that explains application of CASL to various activities, as well as the relevant exemptions, for your reference.

Key Concepts

Covered activities

CASL as passed applies to all electronic communications (ie., text, sound, voice or image message). This includes not only email, but text messages, SMS, videos and telephone communications, although there is a temporary exemption for two-way voice communications between individuals, voice recordings sent to a telephone and for facsimiles.  There is no indication in CASL as to when this exemption from the application of CASL will be repealed.

Consent and an existing business relationship

As of July 1, 2014, the general rule is that consent is required in order to communicate a CEM (a broadly defined term that encompasses not-for-profit commercial electronic messages as well, such as solicitations for charitable, political purposes or for clubs, associations or professional organizations as well as gaming and bartering activities).  Consent may be either implied or express, and, importantly,  "implied" consents are limited to those specified in the legislation.  

As of July 1, 2014, consent will be implied where there is a business relationship and an email has been sent to that party in the past. However, it is important to know that as of July 1, 2017, in order to continue sending CEMs, a company must have either the recipient's implied consent within the two years prior to the sending of the CEM or express consent.  Implied consent will exist if you had an existing business relationship with the recipient within the past two years (e.g., between July 1, 2015 and July 1, 2017).  In other words, as of July 1, 2017, if the company's last transaction with a party pre-dates July 1, 2015 and becomes stale, messages sent after July 1, 2017, new consent must be obtained or the CME must benefit from other exceptions in CASL. It is important to note that CASL specifically prohibits sending a CEM in order to solicit consent although other means of communication, such as ordinary mail, may be used to do so. Practically speaking, companies need to keep track of the date of the last transaction with an intended CEM recipient.

In addition to implied consent arising from existing business relationships, consent will be implied in other circumstances. For example:

  • if the email is sent to a person from whom an application or enquiry was received;
  • if recipient has sent the sender their electronic address, without any restriction, and the message relates to the recipient's business functions, role or activities;
  • if the electronic address is conspicuously published, without any restriction, and the message relates to the recipient's business functions, role or activities;
  • if the CEM answers an information request;
  • if the CEM facilitates, completes or confirms an already concluded commercial transaction; and
  • if the CEM provides information on warranties, product recalls or safety information for a product already bought.

Unsubscribe Mechanism

One of the significant requirements of the new law is that as of July 1, 2014, all CEMs will need to have available an "unsubscribe" function.   A key question is how broadly the unsubscribe function should be applied. While consents are to be specific as to the purposes to which a person agrees to receive information (which could be product specific), it may well be that a recipient wishes to receive some but not all messages from a company.  CASL appears to recognize this, in requiring that there be a process for a recipient to indicate " the wish to no longer receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message." Therefore a single unsubscribe mechanism for "bundled" categories of CEMs is not permitted.

Messages that are sent in the context of personal or family relationships are exempt from the unsubscribe requirement, as is the requirement for an unsubscribe message when sending an email to a person engaged in a commercial activity consisting solely of an inquiry or application related to that activity.


CASL allows for imposition of administrative monetary penalties, which can be substantial – up to $10 million for a company (up to $1 million for an individual).  However, the legislation, in an unusual fashion, specifically notes that, "The purpose of a penalty is to promote compliance with this Act and not to punish."  A number of factors are set out in CASL as to be taken into account in establishing the appropriate penalty, including:

  • the purpose of the penalty;
  • the nature and scope of the violation;
  • any financial benefit that the person obtained from the commission of the violation; and
  • the person's history regarding violations and conduct.   

The legislation also provides that a person can enter into an "undertaking", setting out the conduct that was in contravention of CASL, including any conditions placed upon a party which may extend to requiring payment of an amount.  Notably, if an undertaking is entered into, no notice of violation may be served in connection with the act or omission.  Accordingly, self-reporting in the event of a contravention could avoid a violation being issued, achieving the aim of promoting compliance rather than punishment.

Link to legislation

Link to regulations and regulatory impact analysis statement

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.