Issue #1 – "Commercial Electronic Message"
– Wide Definition Meant to Catch Most Electronic
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
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
"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
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
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
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.
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