Canada: CASL Overview

Last Updated: June 11 2014
Article by Christene Hirschfeld

On July 1, 2014, the bulk of Canada's Anti-Spam legislation will come into effect. If your business or organization sends electronic messages to communicate information, you need to be aware of this law.

Many people refer to the legislation as CASL. The provisions with the greatest application to your organization are the anti-spam provisions. There are provisions dealing with altering transmission data and installation of computer programs, but this update focuses on the anti-spam provisions.

Qualifications

The legislation is complicated. This note highlights the most important parts in a simple way. It does not cover all the details, so when you are thinking about how this new law affects you, please review the legislation and regulations in their entirety, and seek counsel, to ensure that you are in compliance. Our firm is ready to help, and Christene Hirschfeld, Q.C. is knowledgeable in this area.

Who do the anti-spam provisions affect?

CASL's anti-spam provisions affect anyone who sends commercial electronic messages ("CEMs") to, from or within Canada. A CEM is any electronic message that encourages participation in a commercial activity, regardless of any expectation of profit. The term is tech-neutral; in other words, it applies to emails, text messages, social media and other similar forms of communication. Unless exempt under the legislation, a sender must have the consent (either express or implied) of the recipient to send a CEM.

Why should you care?

It's never good when a business is reported to have breached a federal statute. Apart from the bad press associated with a violation of CASL, you should also be concerned about the penalties. The maximum penalty for a breach by an individual is $1,000,000, and for an organization, $10,000,000. Further, in 2017, there will be a private right of action. This means that the person who claims his or her rights were violated can sue you. Further, not only is the individual or organization sending the offending CEM accountable, so are the officers and directors of the organization, and employers are responsible for the actions of their employees. This means that any of these individuals may also be fined and, starting in 2017, sued.

Mandatory Content of CEMs

Subject to certain exceptions, each CEM must contain the following information:

  • The name, telephone number and email or web address of the sender, its affiliates and beneficiaries;
  • A physical mailing address which is correct for at least 60 days after the message is sent; and
  • An unsubscribe mechanism.

The unsubscribe mechanism must be able to be "readily performed". This means that it must easily and quickly accessible and be simple and easy to use.

The legislation requires that any opt-out or unsubscribe request be honoured "without delay" and, at a maximum, no later than 10 business days after it is received.

Exceptions

Unless you fit within one of the exceptions, you are required to have the recipient's consent before sending a CEM. There are two categories of exceptions:

  • Exceptions where neither consent nor mandatory content rules apply; and
  • Exceptions where mandatory content rules apply but consent is not required.

Exceptions to consent and mandatory content rules

You are exempt from the consent and mandatory content requirements if you are sending a CEM to:

  • One with whom you have a personal relationship;
  • One with whom you have a family relationship;
  • The CEM is sent solely as an inquiry or application regarding recipient's existing commercial activity;
  • The CEM is between employees, representatives or consultants of your organization regarding your organization's activities;
  • The CEM is sent to enforce a right; or
  • The CEM is sent by a charity and its primary purpose is fundraising.

Please note that this list is not complete, but it should cover all examples that are relevant for your purposes.

The factors to be considered in determining whether one has a personal relationship include:

  • direct, voluntary, 2 way communications;
  • shared interests, experiences, opinions and info;
  • frequency of communications;
  • length of time since the communication;
  • whether you have met in person.

According to the legislation, in order for a family relationship to exist, the parties must be related by marriage, common-law partnership or legal parent-child relationship, and must have direct, voluntary two-way communication. You will note that sibling relationships and relationships between grandparents and grandchildren, and aunts, uncles, nieces and nephews are not included in this definition.

Other exceptions to the requirements for mandatory content and consent include when the CEM is sent:

  • solely as an inquiry or application regarding recipient's existing commercial activities;
  • between employees, reps, consultants, franchisees of an organization re the organization's activities;
  • sent to enforce a right; and
  • sent by a charity AND its primary purpose is fund raising.

Exceptions where mandatory content does apply but consent is not required

  • You are exempt from the consent, but the mandatory content requirements continue to apply if you are sending a CEM to:
  • provide a requested quotation;
  • facilitate, complete or confirm commercial transaction that recipient previously agreed to enter;
  • provide warranty, recall or safety info about a purchase; or
  • provide info about existing employment relationship or related benefits.

In addition, if it is suggested that you contact someone, you do not require consent to send the first CEM if:

  • The referrer has an existing business (as defined below), existing non-business (as defined below), family or personal relationship with the person you are contacting; and
  • The CEM discloses the full name of the referrer; and
  • The CEM states that it is being sent as a result of the referral.

Express Consent

Unless you fit within one of the exceptions, you require the express or implied consent of the recipient in order to send a CEM. It should be noted that a CEM asking for consent is still a CEM; in other words, you need consent in order to send it.

Consent can be oral but only if it is verified by a third party or recorded. Consent must not be bundled with terms and conditions. This means that on your website, you cannot have the individual click to agree to accept the terms and conditions of, for example, membership in your club or use of your facilities and agree to receive CEMs. Further, the system requires that people opt-in and not opt-out. People must take an active step to signify their consent. This could include checking a box or typing in a word.

Implied Consent

Examples of implied consent include the following:

  • Existing business relationship – e.g.
    • Purchased services within the past 2 years;
    • An enquiry within the past 6 months;
  • Existing non-business relationship if in the last 2 years – i.e.
    • A donation or gift to or volunteer work for a charity or political party; or
    • Membership in a "club", "association" or "voluntary organization".
  • A club, association or voluntary organization is a non-profit organization organized and operated exclusively for the social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit, if no part of its income is payable to any owner, member or shareholder.

Enforcement

The new legislation will be enforced by the following Federal Government agencies:

  • CRTC – administrative penalties, spam, botnets, malware, network reorganization
  • Competition Bureau – false and misleading online representations
  • Office of the Privacy Commissioner – address harvesting, spyware

Organizations must take CASL seriously.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions