Canada's Anti-Spam Legislation, or "CASL" as it is
commonly known, regulates the sending of commercial electronic
messages, or "CEMs", and comes into force on July 1,
2014. The term "commercial electronic message" is defined
broadly under CASL and includes any electronic message that
encourages participation in a commercial activity, regardless of
whether there is an expectation of profit. When considering whether
an electronic message is a CEM, it is necessary to consider the
content of the message, hyperlinks contained in the message which
link to content on a website or other databases and the contact
information contained in the message.
CASL is among the toughest anti-spam laws in the world since it
uses a broad definition of CEM and requires the sender of a CEM to
either have the consent of the recipient, which can be express or
implied, or fit within one of the exemptions in CASL. CASL provides
for significant fines for individuals (up to $1 million) and
businesses (up to $10 million) who violate its provisions. Officers
and directors of companies that violate CASL may be personally
liable for those violations. Also, there is currently a private
right of action scheduled to become effective on July 1, 2017,
which means businesses could be faced with class action lawsuits
relating to breaches of CASL.
It is very important for businesses to ensure that they are CASL
compliant before July 1, 2014. Here are some tips to assist in that
You should become familiar with the provisions of CASL. There
are lots of resources online including our February 2013
Knowledge Bytes article and http://www.fightspam.gc.ca, which was set up by
the Government of Canada to help businesses and individuals become
You should get as many express consents as possible before July
1, 2014. Many companies are emailing their current subscriber lists
and obtaining a new express consent from each subscriber. The onus
is on senders to prove they have the consent of recipients and most
subscriber databases are not sufficient to establish the
recipients' consent. After July 1, 2014, any email asking for
consent is deemed to be a CEM. In other words, you must have the
recipients' consent to ask them for consent.
In the absence of express consent you should review the
situations where implied consent or an exemption may apply to the
CEM's you intend to send.
In addition to obtaining the recipients' consent, you must
ensure that all CEMs you send comply with all formalities required
under CASL, including supplying information regarding the sender
and attaching a functional unsubscribe mechanism.
You should review and revise your marketing, advertising and
external electronic mailing communication practices to ensure they
comply with CASL and the CASL-amended PIPEDA and Competition Act.
For example, there is guidance on how to obtain express consent
under CASL. Establishing formal policies and procedures will be
helpful should it be necessary to rely on a due diligence defence,
which is permitted under CASL.
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.
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