Issue #1 – "Commercial Electronic Message" – Wide Definition Meant to Catch Most Electronic Communications
Canada's new Anti-Spam law and regulations ("CASL") come into effect on July 1, 2014. The purpose of CASL is to the limit the sending of commercial electronic messages ("CEMs") without the consent of a recipient. In this first "CASL Countdown Alert", we will highlight that the definition of CEM is very broad such that CASL most likely applies to the majority of 'enterprise' communications your business sends on a regular basis. There will be extremely steep penalties for non-compliance with CASL, some of the highest regulatory penalties in Canada's history, that will apply to both individuals and organizations.
When advising clients on CASL preparations, we have often encountered the comment "we don't send commercial messages, do we?", followed by any number of comments including:
- "we send e-mails only to our members";
- "we're not looking to sell anything";
- "we're a not-for-profit"; and
- "we don't use email blasts".
None of the above considerations cancels the application of CASL.
It is important to understand that CASL defines a "Commercial Activity" as:
Any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.
Adding to this wide definition of Commercial Activity, CASL states that an "Electronic Message" is:
A message sent by any means of telecommunication, including a text, sound, voice or image message.
In the result, CASL defines a "Commercial Electronic Message" as:
An electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity.
Based on these combined definitions, most of the communication sent by your organization as part of its operational activities is likely caught by CASL.
NEXT WEEK – ISSUE #2: EXPRESS VS. IMPLIED CONSENT TO RECEIVE A CEM
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.