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 illegal activity.

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 country.

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 individual e-mails.
  • 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 forever.
  • 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 communications.

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.