On July 1, 2014, certain provisions of Canada's Anti-Spam
legislation ("CASL") will come into force and govern how
businesses can communicate with Canadian recipients. Given its
scope, CASL is considered to be one of the most stringent
commercial electronic messaging laws in the world. Further,CASL
will also regulate the installation of computer programs. This law
attempts to address issues related to (i) unsolicited electronic
messages (colloquially known as "SPAM"), and (ii)
spyware/"phishing" issues. CASL will be of particular
interest to businesses operating in the Canadian marketplace due to
its impact on electronic communications practices and the
significant penalties for non-compliance (including Administrative
Monetary Penalties of up to $10 million for businesses and $1
million for individuals).
Subject to limited exceptions, CASL prohibits businesses from
sending commercial electronic messages ("CEMs") unless a
prior express "opt-in" consent from the recipient has
been obtained. CEMs include (but are not limited to) emails, text
messages, instant messages and certain forms of social media.
Additionally, CASL requires that CEMs disclose certain prescribed
contact information about the sender and include an easy-to-use
CASL includes several exceptions to its content and/or consent
requirements that may be of particular interest to
businesses. These include exceptions for CEMS sent:
in response to a request, inquiry, complaint or otherwise
solicited by the recipient;
between businesses, provided that the sender has a
"relationship" with the recipient;
to addresses that have been conspicuously published;
to a recipient with whom the sender has an "existing
business relationship" or a "non-business
to friends or family.
CASL also prohibits, subject to limited exceptions, the
installation of a computer program, in the course of a commercial
activity, on the computer system of another without
"opt-in" consent. These computer program provisions are
broadly drafted and cover more than just malware or phishing scams.
CASL will affect the installation of any computer code on a device
with the ability to operate such code, including applications on
tablets, smart phones, other mobile devices and programs embedded
into consumer products (e.g., TV sets, PVRs, household appliances,
etc.). The CASL provisions relating to computer programs will
come into force on January 15, 2015.
Advice for Businesses
Given its broad scope and the significant penalties associated
with non-compliance, CASL imposes substantial requirements on
businesses that rely on CEMs as part of their business strategy.
Given that July 1, 2014, is fast approaching, franchisors and
franchisees should ensure that their internal policies, practice
and protocols comply with CASL. In particular franchise businesses
should assess their electronic marketing campaigns and update their
contact lists. This includes determining if electronic
communication recipients have granted consents to receive
electronic communications and if not, whether any exceptions from
the requirement to obtain consent applies.
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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