Canada's Anti-Spam Law
("CASL") is aimed at curbing the
proliferation of unwanted, bulk electronic messages (commonly
referred to as "spam" or "junk mail"). It does
not stop there though. While the legislation is effective in
capturing both traditional spam and junk mail, it also regulates
all "commercial electronic messages", generally known as
A CEM is a message sent by any means of telecommunication (e.g.
text, sound, voice or image) to an electronic address (e.g. email
account, instant messaging account or telephone account) if one of
its purposes (even a minor purpose) is to encourage participation
in a "commercial activity." This may even include
communications across social media platforms.
A commercial activity is broadly defined as a transaction, act
or conduct of a commercial character (regardless of expectation of
profit), including an advertisement, promotion or offer for the
purchase, sale, or lease of goods, services or land, or a business,
investment or gaming opportunity, or the promotion of a person who
does anything related to those commercial activities.
As such, CASL's breadth has strong implications for
organizations or individuals sending almost any kind of electronic
Nonetheless, there are exemptions for certain kinds of CEMs,
such as CEMs sent by a political party or organization aimed at
soliciting a contribution under the Canada Elections Act, CEMs sent
by a registered charity aimed at raising funds for the charity, or
CEMs sent within an organization concerning internal
Importantly, if the content of an email is not commercial in
nature or is exempted (e.g. a survey, newsletter, or a request for
political contributions or charitable donations), but the email
contains a hyperlink to a corporate sponsor's website, then the
email may be considered a CEM. In all cases, the purpose of an
electronic message will be considered as a whole; taking into
account all content, hyperlinks or contact information within the
In coming weeks we will provide some examples of messages that
you might not think are CEMs but are nevertheless caught by the
CASL will not allow anyone to hide under the guise of an
exemption or non-commercial purpose. Furthermore, effective July 1,
2014, any message aimed at obtaining consent to send CEMs will be
considered a CEM.
All organizations and individuals uncertain as to whether their
electronic messages are considered CEMs, should mitigate risk by
complying with CASL and, in particular, its unsubscribe
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
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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