Issue #3 – Minimum Required Content of all CEMs
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. However, CASL also imposes content requirements for all CEMs sent on and after July 1, 2014, regardless of whether the basis for sending the CEM is express or implied consent. In this third "CASL Countdown Alert", we will highlight the required content of CEMs and address practical issues that arise from that required content.
CASL is a regime based on consent to receive CEMs. Therefore, it makes practical sense to ensure that CEMs sent in compliance with the law make it transparent who has sent the CEM as well as facilitate the withdrawal of consent by a recipient.
CASL is very clear on the minimum content of all CEMs sent on and after July 1, 2014:
The [CEM] must be in a form that conforms to the prescribed requirements and must:
- set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent;
- set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and
- set out an unsubscribe mechanism in accordance with [the requirements of CASL].
However, CASL makes content compliance a bit more complicated by the inclusion of a "timing" requirement with respect to the requirements listed above. Note the following CASL provision:
The person who sends the commercial electronic message and the person — if different — on whose behalf the commercial electronic message is sent must ensure that the contact information referred to [above] is valid for a minimum of 60 days after the message has been sent.
Given that our workplaces are in a constant state of activity and change, it does not seem practical to have to keep track of which person sent which CEM on any given day for the purposes of CASL compliance. We recommend that our clients consider providing position titles as well as individual names in CEMs so that there is continuity with respect to the contact information required by CASL. Our clients may also wish to consider identifying a "CASL Compliance Officer" so that such position is identified within CEMs as the default for all contact information as required by CASL.
It is interesting to note that certain regulations made under CASL have not yet come into force. However, these regulations include additional content requirements for all CEMs and these requirements shall apply in addition to the requirements stated above when the regulations are enacted.
The key provisions of these yet-to-be-enacted regulations are as follows:
- For the purposes of subsection 6(2) of the Act, the
following information must be set out in any commercial electronic
- the name by which the person sending the message carries on business, if different from their name, if not, the name of the person;
- if the message is sent on behalf of another person, the name by which the person on whose behalf the message is sent carries on business, if different from their name, if not, the name of the person on whose behalf the message is sent;
- if the message is sent on behalf of another person, a statement indicating which person is sending the message and which person on whose behalf the message is sent; and
- the mailing address, and either a telephone number providing access to an agent or a voice messaging system, an email address or a web address of the person sending the message or, if different, the person on whose behalf the message is sent.
- If it is not practicable to include the information referred to in subsection (1) and the unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act in a commercial electronic message, that information may be posted on a page on the World Wide Web that is readily accessible by the person to whom the message is sent at no cost to them by means of a link that is clearly and prominently set out in the message.
It is never too early to start planning for CASL's content requirements by identifying who or which position within your organization is the contact person for all CASL-related communications.
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.