Issue #4 – What Employers Need to Know: Exception to
Consent Requirement within CASL
Canada's new Anti-Spam law and regulations
("CASL") come into effect on July 1,
2014. The purpose of CASL is to limit the sending of
commercial electronic messages ("CEMs") without the
consent of a recipient. However, CASL grants certain
exceptions to the requirement of consent before sending CEMs.
Employers should take note of the consent exceptions that apply
within the employment context so that internal business
communications are not disrupted or subject to doubt due to this
new law. In this fourth "CASL Countdown Alert",
we will highlight the consent exceptions that are available to
employers for the purpose of internal business communications.
CASL expressly states that the consent required to send a CEM
does not apply where the CEM solely:
provides information directly
related to an employment relationship or related benefit plan in
which the person to whom the message is sent is currently
involved, is currently participating or
is currently enrolled. [emphasis added]
Employers should also bear in mind that, regardless of how broad
CASL's definitions of "commercial activity" and
"CEM" may be, most employer-employee communications will
not fall within those definitions and thereby are not subject to
CASL at all. Instead, it is pertinent for employers to acknowledge
that some communications with employees fall within the definition
of "commercial activity" under CASL because of the
"commercial character" of such communications (i.e.
promoting a new benefit plan, offering discounts at local
retailers, and possibly a wide variety of content). Where this
definition applies, employers are able to send CEMs to employees
without consent where the relationship between employer and
employee is current. Reasonable facts would determine the currency
of the relationship.
Exception to Consent Requirement under CASL's
CASL's Regulations, introduced in December 2103, provide
employers with additional freedom to operate outside of CASL's
consent requirements. The Regulations provide that the requirement
of consent does not apply to a CEM:
that is sent by an employee, representative, consultant or
franchisee of an organization
to another employee, representative, consultant or franchisee
of the organization and the message concerns the activities of the
to an employee, representative, consultant or franchisee of
another organization if the organizations have a relationship and
the message concerns the activities of the organization to which
the message is sent.
Clearly, this provision includes freedom for parties other than
employers. However, as an employer plans for CASL compliance, which
necessarily includes vetting of its internal business
communications transacted by electronic means, it should be a great
relief to have this wide CASL exception apply to those parties
which are the employees and agents of the business itself.
NEXT WEEK – ISSUE #5: PRACTICAL ADVICE FOR
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