Over the past months, I have been
writing, lecturing and advising on Canada's anti-spam
legislation (CASL). In discussing the legislation, I have
encountered many myths and misconceptions about CASL and its
implications. This is not surprising. The legislation and
accompanying regulations create a complex and often confusing
regulatory regime that contains more questions than answers.
In an effort to debunk some of those
myths and misconceptions, I will address some of the more common
Myth #1: CASL only applies to
Because it is commonly referred to as
"Anti-Spam Legislation", there is a broad misconception
that CASL only applies to spam emails, like those sent by a
Nigerian prince offering opportunities to invest in his business
CASL does not only regulate what is
traditionally considered "spam". CASL regulates all
Commercial Electronic Messages ("CEMs") sent to anyone in
Canada. A CEM is basically any electronic message (email, text
etc.) that has, as one of its purposes, the encouragement of
participation in a "commercial activity", or the
promotion of the person or organization sending the CEM. Examples
of potential CEMs include:
Emails / texts marketing or advertising a service, person, or
Newsletters, e-bulletins and other informative emails
containing links to the sender's website or promoting the
sender and/or his/her products / services
Emails / texts inviting the recipients to events
Electronic messages sent for networking purposes
Offers of contests, discounts, specials etc.
Myth #2: CASL will not be
enforced until 2017
CASL's requirements respecting CEMs
come into force on July 1, 2014. After that date, the regulators
may enforce it and may impose penalties (which, at their extreme,
are $1,000,000 for individuals and $10,000,000 for
There is a three year transitional
period, but that transitional period only applies in very specific
circumstances. It should not be interpreted as meaning that CASL
will not be enforced before July 1, 2017, because that is simply
not the case.
The only parts of CASL that come into
force in 2017 are the sections dealing with private rights of
action. Basically, CASL allows plaintiffs to issue a civil claim
against an offender, but those actions may only be commenced after
July 1, 2017.
Myth #3: CASL does not apply to
non-profit organizations and charities
CASL applies to non-profit
organizations in the same manner as to for-profit businesses.
Registered charities are subject to
CASL's requirements, except for CEMs that are sent for the
"primary purpose" of raising funds for the charity. Since
not all CEMs sent by charities are for the "primary
purpose" of raising funds, charities must ensure that they
comply with CASL's requirements.
Myth #4: If all I need is
consent, I can simply email the recipient a request for his / her
CASL prohibits the sending of a CEM to
anyone, without having first obtaining the recipient's consent
in a specified form (with limited exemptions). However, obtaining
consent may not be as simple as sending an email asking for
consent. That is because CASL states that an email sent for the
purpose of seeking consent is prohibited.
Myth #5: My business can rely
on the business to business exemption
The "business to business"
exemption allows a business to send a CEM to another business with
having to obtain consent, but only if the businesses have an
existing relationship and the content of the CEM is relevant to the
recipient's role within the business.
Because this exemption is narrowly
construed, it is presumptuous to rely on it for all CEMs sent
Myth #6: I can rely on
previously obtained consent under privacy legislation
It is unlikely that previously obtained
consent to collect and use personal information under privacy
legislation will be considered acceptable for CASL purposes.
Myth #7: CASL's computer
program requirements are only relevant to IT
It is true that, if you are in the
information technology industry, you are likely going to be subject
to CASL's requirements regarding the installation of computer
programs. However, many consumer products contain computer code
that would be captured by CASL's requirements as well (e.g.,
vehicles, electronics, toys etc.). The manufacturers, distributors
and retailers of those products should ensure that they are
complying with 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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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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