Canada's Anti-Spam Legislation ("CASL") comes into
force on July 1, 2014. The reach of this legislation is extensive
and most organizations are unprepared for it. The problem with this
legislation is that in its effort to prohibit spam, it prohibits
the sending of many types of e-mail we are accustomed to sending
and receiving. The concern with this legislation is that CASL will
likely have little or no effect on unethical or illegal spam but it
will have a significant impact on ethical and law abiding
businesses and organizations.
Even though you may not consider yourself a spammer, this
legislation will regulate many of the electronic communications
that you take for granted. Virtually every business, charity and
non-profit organization may be subject to the new rules contained
in CASL. In order for organizations to become compliant with this
legislation, significant changes will be required to your existing
operational practices. Non-compliance with CASL may expose your
organization to significant financial penalties – 100 times
higher than for privacy breaches – up to $10 million for
organizations and up to $1 million for individuals.
Why is Canada enacting this legislation? Currently, it is
estimated that there are approximately 250 to 300 billion e-mails
sent on the Internet each day – over 3,000,000 per second.
Industry Canada estimates that spam represents approximately 80% of
this e-mail traffic.
Most countries have had anti-spam legislation in place for more
than a decade. There are more than 125 countries worldwide that
currently have anti-spam legislation, in what has become somewhat
of an international effort to stop this annoying and sometimes
Canada is arriving late to the anti-spam regulation. Canada has
decided to create the strongest anti-spam regime in the world.
Unfortunately, CASL is unlikely to stop the fraudulent spammers
that are sending out phishing e-mails luring people into scams, but
it will have a substantial impact on virtually every ethical,
law-abiding business and non-profit organization in the
Why is this?
For a number of reasons, including:
CASL regulates e-mail, not spam. The definition of a commercial
electronic message is very broad and effectively includes
Canada requires an opt-in consent which will be very difficult
for legitimate organizations to obtain from their existing database
of contacts because most people do not respond to e-mails
requesting consent to receive e-mails.
The onus to prove consent is on the sender of e-mails and this
will create a significant burden on organizations that are forced
to develop a record-keeping system for tracking consents
The legislation impacts social media but does not provide
adequate or realistic methods for social media to operate.
This may create many unintended violations.
There are numerous exceptions set out in the legislation that
will lure many into the trap of believing that they are exempt. The
exceptions will apply to certain classes of messages but not to
types of organizations, and so virtually all organizations will
send some messages that violate CASL.
There are three key requirements in CASL for sending commercial
electronic messages: (1) you must obtain the recipient's
consent to receive commercial electronic messages from you; (2) you
must clearly identify the sender; and (3) you must have an
unsubscribe mechanism, and all unsubscribe requests must be
honoured within 10 days of receipt.
Every organization must seriously rethink its current
communication practices and create systems for obtaining consents,
recording consents and unsubscribing from receipt of electronic
With CASL coming into force on July 1, 2014, it is critical for
organizations to prepare as quickly as possible.
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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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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