Canada: CASL: Still Muddy Waters

Last Updated: July 19 2014
Article by Lisa R. Lifshitz

First published: June 16, 2014, Canadian Lawyer Magazine, "The IT Girl" column (

On June 6, I received an e-mail from Industry Canada inviting me to become "better informed" about Canada's Anti-Spam Legislation through one of several information sessions hosted by the Canadian government "across the country" during the past six months. Having duly signed up to receive "Fighting Spam" updates, I was directed to watch a video, one month after it had been posted to YouTube, that promised to provided "detailed information on enforcement, regulations and guidance related to CASL."

Since I have a professional interest in this subject, I dutifully watched the 47-minute, 46-second video a few times and reviewed the 38-page accompanying PowerPoint presentation. So let me share with you what I have — and have not — learned.

Perhaps first and foremost, I learned I could not rely on anything I heard in the video. Within the first 20 seconds, the first speaker announced as this presentation was prepared by Canadian Radio-television and Telecommunications Commission staff, it provides "staff level guidance" only and does "not bind the commission in any way." Nor does it provide interpretational guidance on behalf of the Privacy Commissioner, the Competition Bureau, or Industry Canada. The PowerPoints made this even clearer, confirming the material "is not to be considered legal advice nor is it binding on the Commission itself."

This point was repeated several times during the video, reinforced again by the second speaker, Kelly-Anne Smith, the CRTC's lawyer who later spoke on the substantive parts of the act and frequently reiterated the "CRTC's staff's" positions on various regulations and "guidance." (She also confirmed the CRTC's previous information bulletins and the Regulatory Impact Assessment Statement first provided with the final Industry Canada Regulations last December are also not binding on the CRTC nor on the courts — but we knew that already).

Given the paucity of guidance Canadians have been receiving on this legislation, it was mildly interesting to hear the "staff views" articulated in this presentation but remain distinctly uneasy as to how I am now supposed to translate this information into meaningful advice for my clients whose livelihoods depend on clear guidance.

I also learned the CRTC is very proud of the enforcement and compliance aspects of this legislation, particularly the robust administrative monetary penalties and its ability to "follow the money," "pierce the corporate veil," and hold officers and directors accountable for their actions. About one-third of this video provided an overview of the history of the legislation, the (sometimes overlapping) roles of the three different organizations, and, in particular, the role of the CRTC in enforcing CASL.

There was even a detailed slide on the CRTC's enforcement procedure and the new "spam reporting centre," which will allow Canadians to file complaints and send in spam samples for enforcement activities. It will be "operationalized out of the CRTC."

Did you know, for example, that the CRTC plans to set up "honey pot" spam sting operations to reel in would-be spammers and substantiate spam complaints? Shades of James Bond! Ultimately, we were told the CRTC wants and needs maximum flexibility in how it actually deals with enforcement — so all decisions regarding enforcement will be made on a case-by-case scenario and may or may not involve those dreaded AMPs, depending on the seriousness of the violation. Interesting, but not particularly enlightening.

In the remaining 30 or so minutes, the CRTC's lawyer discussed CASL regulations, primarily the form requirements under the CRTC regulations, and more generally the governor in counsel/Industry Canada Regulations. Not much new under the CRTC regulations, other than to confirm a request for consent can be sent on behalf of several affiliates and these affiliates can be listed on a separate web site, not just in the message.

With regard to the Industry Canada regulations, the video offered the following "additional staff level guidance" (these are highlights only):

  • As explained in the RIAS, the definition of "personal relationship" must remain limited to "close" relationships. The "personal relationship" exemption remains very narrow and has this relationship to exist between individuals. So the CRTC staff does not consider legal entities, such as a corporation, to be able to have a "personal relationship." Thus, someone who sends a commercial electronic message on behalf of a corporation may not claim to have a personal relationship with the recipient.
  • Additionally, in order to use the "personal relationship" exemption, there can be no hiding under aliases — this exemption requires the real identity of the individual who alleges a personal relationship is known by the other individual involved in such a relationship (as opposed to instances where a virtual identity or an alias is used).

So according the CRTC staff, using social media or sharing a same network does not necessarily reveal a personal relationship between individuals. The "mere use of buttons available on social media — i.e. clicking 'like' on Facebook, voting for or against a link or post on Reddit, accepting someone as a friend on Facebook, or clicking to follow someone on Twitter — will generally be insufficient to constitute a personal relationship" (of course, this will be verified on a case-by-case basis).

  • If you obtained valid express consent prior to CASL coming into force, ("valid under PIPEDA") you will be able to continue to rely on that express consent even if your request did not contain the requisite identification and contact information (finally, some good news!). However, all CEMs sent after CASL comes into force must contain the requisite information, meet all form requirements, and contain an unsubscribe mechanism. CASL requires the sender to prove having obtained valid express consent.
  • Under the transition period of CASL, s. 66 deems implied consent for a period of 36 months and the definition of existing business relationship and non-business relationship is not subject to the limitation periods (six months and two years, respectively) that would otherwise be applicable under CASL during this period. This will definitely buy additional time for compliance purposes.
  • The video also attempted to discuss the exemptions relating to quotes/estimates versus requests and confirmed if a company is sending a CEM in response to a request, inquiry, or complaint, requested by the person to whom the message is sent, it would not have to comply with s. 6 of CASL (i.e. it "does not require consent or need to meet the information requirements and add an unsubscribe mechanism to the CEM.")

However, per s. 6(6), if you are sending a CEM that provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent, you do not need consent (express or implied) but you still are required to meet information requirements and to add an unsubscribe mechanism to the CEM because, per the guidance of CRTC staff, there is a "financial requirement" to the quote or estimate. This explanation seems strained — there could presumably also be financial considerations to inquiries/complaints — and the issue is still not well explained and remains confusing.

  • While CEMs sent by or on behalf of a registered charity, as defined in s. 248(1) of the Income Tax Act, are excluded from s. 6 of CASL, the main purpose of the CEM must be to raise funds for the charity to get the exclusion. But if the charity is sending CEMs for other purposes, CASL may apply for those messages. Not great guidance here.
  • Curiously absent from the video was more guidance of what constitutes a CEM itself, the exact definition of which remains ambiguous (see my January column). Or whether the CRTC will attempt to expand its compliance reach extraterritorially, since CASL nominally applies to CEMs accessed from computer systems located in Canada, regardless of where they were sent from.

I invite you to all watch the video. However, don't try leaving any comments as this feature has been disabled. So much for transparency. What's the CRTC afraid of? Low viewing numbers? (Right now the video indicates that there have been 301+ viewers). Or is the fact Canadians might express their true feelings towards this absurd legislation and its cumbersome, time-consuming, and expensive compliance requirements?

My clients remain incredulous that after July 1, in the absence of other exemptions, the sending of a message asking for express consent itself will be considered spam.

In the meantime, I await further enlightenment, which the video has said will be forthcoming in the form of more "Future Informative Guidance Material" (i.e. cross-country information sessions, speaking engagements, webinars, information bulletins, staff guidance material, FAQs on the CRTC web site, infographics, and informative videos, etc.). With the enforcement of the first part of CASL less than one month away, I still think my clients, and the Canadian public at large, deserve much better — or at least more concrete guidance — than this.

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.

Lisa R. Lifshitz
In association with
Related Topics
Related Articles
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