Canada: Spam Ho!

Last Updated: March 26 2014
Article by David Spratley

Canada's anti-spam legislation (generally called "CASL") comes into force on July 1, 2014. CASL is far-reaching, applies broadly to commercial electronic messages and computer programs, has onerous restrictions, has significant penalties for non-compliance (up to $10 million per violation for organizations), and is not clearly written or easy to follow. You can find more information about CASL and CASL compliance here.

What Messages Are Covered by the Law?

CASL applies to "commercial electronic messages" or "CEMs" – an "electronic message" one of whose purposes (not necessarily the primary purpose) is to encourage participation in a "commercial activity."

An "electronic message" is any message sent by telecommunication, including a text, sound, voice or image message, and "commercial" means any transaction, act or conduct that is "of a commercial character," whether or not the person who carries it out does so in expectation of profit.

The definition of CEM is therefore broad enough that it could reasonably apply to the activities of many non-profit or charitable organizations.

What's the Prohibition?

CASL prohibits anyone from sending a CEM without express or implied consent. It has strict rules about getting express consent (the best part is that a request for consent to send a CEM is itself a CEM). And it has very specific rules for what counts as "implied consent" (unlike in the privacy context, where implied consent is more of an open and situation-specific concept).

CASL also requires that CEMs contain certain information, and has specific requirements about opt-out mechanisms, procedures and timelines.

What about Registered Charities?

CASL has some specific exceptions for registered charities. First, registered charities can rely on an implied consent exception based on an "existing non-business relationship" if:

  • the recipient made donations or gifts to the charity within the two years immediately before the CEM was sent; or
  • the recipient performed volunteer work for, or attended a meeting organized by, the charity within the two years immediately before the CEM was sent.

If either of these situations applies, the charity can send CEMs within the two-year window without express consent.

Second, Industry Canada's regulations (CASL has two sets of regs, one from Industry Canada and one from the CRTC – it's a long story) say that the general prohibition does not apply to CEMs that are sent by or on behalf of a registered charity and whose primary purpose is to raise funds for that charity. This exception applies regardless of whether there's any pre-existing relationship, which means a registered charity can send fund-raising CEMs without consent at any time.

What about Non-Profits?

The specific exceptions described above apply only to registered charities, not non-profit organizations generally. And remember that CASL says that an activity can be "commercial" even if it is carried on without expectation of profit.

However, an implied consent exception based on an "existing non-business relationship" with respect to membership in a "club, association or voluntary organization" may apply to some non-profits. The regulations define this as a non-profit organization that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit. To qualify, no part of the organization's income can be payable to, or available for the personal benefit of, any proprietor, member or shareholder, unless (CASL excels at having exceptions to exceptions) that proprietor, member or shareholder is an organization whose primary purpose is the promotion of amateur athletics in Canada.

The exact scope of this exception remains unclear. "Social welfare, civic improvement, pleasure or recreation or any purpose other than personal profit" is certainly broad, but the additional income wording might exclude some organizations even if they fit within those activities.

What about Co-Ops?

CASL says that cooperatives under the Canada Cooperatives Act, cooperative associations under the Cooperative Credit Associations Act, and any similar organization incorporated under legislation are "businesses" for the purpose of the "existing business relationship" implied consent exceptions. This wording makes clear that co-ops must rely on the "existing business relationship" exceptions, not the "non-business" ones.

What General Exceptions Might Apply?

Charities and non-profits might also be able to rely on one of CASL's general "existing business relationship" implied consent exceptions, which include:

  • the recipient purchased or leased products, goods, services or land from the sender within the two years immediately before the CEM was sent;
  • the recipient accepted a business, investment or gaming activity offered by the sender within the two years immediately before the CEM was sent;
  • the recipient entered into a written contract with the sender regarding a matter not covered by the other exceptions, if the contract is in existence or expired within the two years immediately before the CEM was sent; and
  • the recipient sent an inquiry or application to the sender in respect of anything mentioned in the other exceptions, in the six months immediately before the CEM was sent.

Do You Need to Comply as of July 1, 2014?

There is a transition period for coming into compliance once CASL is in force. If an organization has an existing business or non-business relationship with an individual as of July 1, 2014, and if that existing relationship includes the communication of CEMs, then the organization has implied consent to continue sending CEMs to the individual until the earlier of (1) the individual specifically opting out, or (2) July 1, 2017.

A Final Word on Exceptions and Consent

CASL contains more exceptions, including those relating to family and personal relationships, intra-organization messages, referrals, etc. Determining which exceptions, if any, apply to a particular CEM will be an ongoing issue for all Canadian commercial organizations.

However, CASL always allows CEMs to be sent with express consent, so long as the consent is obtained in accordance with CASL and the CEM has the required content. So both non-profits and charities can avoid the debate and potential confusion around whether an exception applies by obtaining and relying on proper and documented express consent. This is not necessarily simple, and most organizations will have to implement new measures to track their mailing lists, consents, etc. – but once a CASL compliance program is in place, proving and relying on express consent may very well be simpler and less risky than relying on an exception.  

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
Boyne Clarke
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Boyne Clarke
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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