Various organizations and individuals are considering changes to
existing practices to comply with Canada's Anti-Spam Law ("CASL").
It has become evident that there is more to CASL than its title
As explained in our previous post, CASL will regulate "commercial
electronic messages" (commonly known as "CEMs") that
one may not consider to be "spam" in the traditional
Notable examples of what may be regulated by CASL include: a
press release, a newsletter, or any other publication that contains
a minor advertisement, promotion or offer. Additionally, a
hyperlink in a message to content on a website or the contact
information contained in a message will be considered in
determining whether a message is a CEM. As a result, it will be
more difficult to send updates or relevant factual information to
CASL does not only apply to promotional messages sent by
marketing firms or internal marketing departments. It also applies
to CEMs sent by employees or representatives of an organization.
Importantly, employers will be responsible for their employees,
subject to a due diligence defence.
For instance, if an employee sends an email to other employees
of an organization regarding a garage sale or family cabin rentals
(without knowing them personally), the message would be considered
a CEM. An exclusion exists for CEMs sent between employees of the
same organization, however, it is limited to messages concerning
the activities of the organization, which is not the case here.
It is interesting to consider the implications of CASL on social
media. CASL regulates push communications (e.g. private messages
sent by a sender), rather than pull communications (e.g. messages
placed on a blog and retrieved by a reader).
For example, it is common for Facebook users to utilize the
private message feature to send their "friends"
invitations to donate to charities (which often include
advertisements by a corporate sponsor) or to encourage attendance
at a workplace event (such as a restaurant or bar). While one would
assume that this type of activity is acceptable between friends
(given that Facebook provides privacy restrictions and rules on
advertising for its users), it will soon be regulated.
CEMs sent between individuals who have a "personal
relationship" (direct, voluntary, two-way communications) are
excluded from CASL taking into account any relevant factors such as
sharing of interests, experiences, opinions and information
evidenced in communications, the frequency of communications, the
length of time since the parties communicated or whether the
parties have met in person. However, in the case of Facebook users,
it is clear that this exclusion requires more than just virtual
The implications of CASL on LinkedIn communications will largely
depend on whether a user has a public profile, publishes any
electronic addresses in their contact information, expressly states
what type of messages they want to receive or upgrades their
account to use InMail.
It is important for organizations and individuals to note that
the application of CASL's exclusions will depend on each
particular situation and that some exclusions are partial
exclusions from CASL (e.g prescribed content and unsubscribe
mechanisms still apply). CASL is wide-reaching with limited and
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