Canada: Oh, Canada – What Does Your Anti-Spam Law Mean For Me?

5 Things Those Outside Canada Need to Know About Canada’s Anti-Spam Law (CASL)

Provisions related to sending commercial electronic messages under Canada's Anti-Spam Legislation (CASL) come into force on July 1, 2014. As we stand on the eve of this new regime, many Canadian companies are still scrambling to prepare and, outside of Canada, many companies are just starting to realize how the legislation may impact their communications with Canadians. If you send emails or text messages, use chat/messaging windows, or even interact on social media with consumers or businesses in Canada from abroad, here are five important facts to consider in deciding whether you need to worry about CASL:

1. Rethink "spam"

CASL applies to more messages than you might think. The legislation addresses the sending of "commercial electronic messages" (CEMs), whether sent to consumers or business-to-business, and whether sent through mass emails or one-to-one. Amendments to our Competition Act provide additional tools for our regulators in respect to false or misleading conduct, but even without misleading consumers – and even where you have consent under private sector privacy legislation – your CEM could run afoul of CASL.

Beginning July 1, 2014 it is offside CASL to send a CEM without express consent to do so, unless either an exception is available, or implied consent is permitted through specifically prescribed circumstances. Obtaining express consent also includes the obligation to disclosure certain contact information, and that the person can opt out at any time. Further, prescribed disclosures and an opt-out mechanism need to be included in the CEM. Otherwise, the message will not satisfy CASL requirements. (Try doing all that in a text message.)

And, there is no automatic grandfathering of existing email lists under the legislation, although administrative positions give some help to salvage prior contacts. Companies need to consider carefully the grounds under CASL that allow them to communicate electronically with their existing contacts.

2. CASL's extra-territorial reach

CASL applies to CEMs sent from, or accessed in, Canada. So, if you are sending CEMs to Canadians from another jurisdiction, CASL will apply. Notably, there is an exception where the person sending the message "reasonably believes" that the message will be accessed in one of a list of prescribed jurisdictions with anti-spam laws thought to be 'substantially similar' to CASL and the message complies with the laws of that jurisdiction. So, for example, if your database is built from those who have entered contests open only to residents of the United States, or through a website only advertised in the UK, it may be reasonable to believe that your CEMs will be opened in jurisdictions other than Canada. But, in many cases, it may be unclear whether to is reasonable to assume that Canadians are not on your lists.

The extraterritorial reach of enforcement has yet to be tested, of course, but if you have a physical presence in Canada, you should be prepared to comply with CASL even if the CEMs are originating from outside of the country. CASL also contemplates reciprocal enforcement agreements or arrangements with governments of other jurisdictions, but we are still too early in the game to know what these might capture and to what extent they will be taken up in cooperation with other regulators.

3. Social media can be murky

Don't forget that CASL reaches farther than just emails and, in the context of Facebook, Twitter or other social media platforms, it may not be "reasonable" to assume that the audience does not include Canadians. Given the broad scope of CASL, certain social medial activity is clearly captured, but in some circumstances it's not clear how or whether CASL will apply. We start with the good news – public posts, broadcast Tweets, and the like, would not be captured by CASL. Direct or private messages sent through social media platforms, however, would be captured and therefore need to meet the consent and disclosure requirements. Uncertainty lies in "hybrid" activity, including tagging an individual or calling out another user's handle in a Tweet. To the extent that these are messages sent to an individual user's social media address, in addition to being public posts, they could be captured by CASL requirements. The regulator has yet to comment on how it interprets these kinds of hybrid messages, and so some companies may choose to proceed cautiously for now.

4. Exceptions and Implied Consent

There are exceptions to the CASL requirements, in whole or in part, when sending CEMS to those with whom you have a "personal relationship" or "family relationship" (also defined), responding to a customer inquiry, or completing a transaction, as examples. Note, however that some exceptions only allow you to proceed without obtaining express consent; mandatory information disclosures and opt-out requirements for the message may still apply.

A lot of companies will see to rely on an "existing business relationship" (EBR) with a person or company to be able to imply consent to receive CEMs, instead of needing express consent. Note, however, that there is a very specific definition of an EBR that general requires a past purchase or related inquiry, or some other written contact. Note, however, that this implied consent expires after a prescribed period of time, and so you have to keep track of the dates of the activity unless or until you can convert the communications to be based on express, rather than implied consent.

Some more good news: if you can meet the definition of an "existing business relationship" with existing contacts (i.e. prior to July 1, 2014), and you have sent or exchanged more than one commercial electronic message with the contact as part of that relationship before that date, then you can rely upon implied consent for three years (i.e. until July 1, 2017) unless the contact unsubscribes first.

5. Significant penalties

Non-compliance with CASL is no laughing matter and could cost even well-meaning businesses dearly. Contraventions of CASL carry an administrative monetary penalty of up to $10 million per violation for corporations. CASL also provides for injunctive relief, vicarious liability, and authorizes the enforcing regulators to share information with the government of a foreign state if the information is relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state (and where the laws of that foreign state are substantially similar to the conduct prohibited by CASL).

And, as if this wasn't bad enough, beginning in July 2017 provisions will come into force extending a private right of action, which would include class proceedings. Hold on to your hats! We can see the potential for some significant challenges ahead on this basis alone.

The above discussion only scratches the surfaces of what is a rather complicated and nuanced new legislation, with further administrative guidance still to come from the regulator. Given its broad reach and strict penalties, it is important for businesses reaching into Canada to evaluate their compliance efforts. In some cases, this may require re-evaluating existing business and consumer marketing models, since CASL is now largely thought to be the most onerous anti-spam regime worldwide. Who would have thought that of Canada, eh?

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

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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