Canada: CASL - What Does It Mean To Your Business?

Canada's Anti-Spam Legislation ("CASL") was passed by Parliament on December 15, 2010,. Viewed as one of the world's toughest anti-spam laws, it was originally planned to come into force in 2011 and 2012. However, it was not until December 4, 2013 that the fi nal Industry Canada regulations (the "Regulations") that are to govern the enforcement of the CASL were released following a lengthy process of stakeholder consultation.

As a result of the Regulations, CASL will come into force on July 1, 2014. The Canadian Radio-television and Telecommunications Commission ("CRTC") will then have the power to enforce a maximum available penalty of $10M for an offence committed by an organization. The provisions relating to installation of computer programs and private cause of action set out in CASL will not come into force until January 15, 2015 and July 1, 2017 respectively.

The objective of CASL is to discourage commercial activities that impair a secure online environment and undermine consumer trust in the online marketplace. This new legislation will have a significant impact on the communication efforts of businesses and non-profit organizations (though, the Regulations do make an exception for registered charities).

CASL prohibits unsolicited Commercial Electronic Messages ("CEM"), unauthorized installation of computer programs on another person's computer and the altering of the transmission of a sender's data that causes the message to be delivered to a destination other than the destination specified by the sender. CASL's definition of "commercial activity" is sufficiently broad that potentially any transaction or conduct, whether or not carried on for profit, could be considered commercial. As such, CASL is applicable to both commercial enterprises and non-profit organizations.

CASL will apply to CEMs sent by any means of telecommunication, including text, sound, voice or image messages that promote a commercial activity. And it will not matter if the recipient is an individual or a business; the test is whether the sender of the message encourages participation in a commercial activity. If a communication is deemed to be a CEM, then it is prohibited unless: i) consent to send a message has been obtained from a recipient; ii) certain formalities as to the content of the message are met; or iii) the message falls within one of the enumerated exceptions, including but not limited to, CEMs sent to persons to whom the sender has personal or family relationship, and business inquiries about products or services offered by the recipient. The Regulations define "family relationships" to exclude siblings and cousins, however these relationships would still likely be covered in the definition for "personal relationships".

The Rules of Consent

It is important to remember that an electronic message requesting consent to send a CEM is itself a CEM and, thus, after July 1, 2014 cannot be sent without the prior consent of the recipient. In reviewing their email and customer lists, companies must identify which recipients have given express consent, implied consent or no consent at all. CASL does create a three year grace period to obtain consent if the business has an existing business relationship or non-business relationship.

CASL is based on an opt-in model, meaning recipients must expressly opt-in and agree to receiving CEMs. Merely offering a recipient a link to opt-out of receiving future emails is not compliant with CASL's requirements for consent.

The express consent is in a prescribed form and consists of the recipient's positive confirmation of consent. The sender's request must disclose the purposes for which consent is sought, the identity of the actual or beneficial sender of the message, the sender's contact information, and an effective unsubscribe mechanism. Recipients must be given an option to withdraw consent at any time. Once consent is withdrawn, the sender can no longer send CEMs to the recipient.

There are limited exceptions to the opt-in express consent to receive CEMs. For instance, consent may be implied where a sender of the message has an "existing business relationship" or an "existing non-business relationship" with the person it is sent to. CASL sets out specific tests for each category. For instance, the exception in CASL is limited to customers who have had a continuous business relationship with the sender within two years prior to the sending of the message.

For charities and other not-for-profit organizations consent may be implied where there is an "existing non-business relationship" between a recipient and a sender that is a registered charity, political party, political candidate, club, association or voluntary organization. A "non-business relationship" would be deemed to exist if within the last two years before the day on which the message was sent, the recipient had made a donation to or had performed volunteer work for a charity, or had been a member of a club, association or voluntary organization, and had not annulled or revoked consent.

The Regulations clarify that messages sent by a registered charity to seek donations fall within the permitted exceptions, provided they are not engaging in any other kind of commercial activity, that is, not engaging in selling or promoting a product. CASL also exempts charities where there is implied consent, that is, where a previous donation has been made to the charity within the last two years.

The 3-year grace period relating to implied consent has a similar counterpart in the provisions relating to the installation of computer programs where they were installed on a person's computer prior CASL coming into effect. Valid express consent obtained before CASL comes into force will be recognized as being compliant. However, where organizations are currently relying on implied consent, organizations will have to seek and receive express consent from recipients within the permitted timeframe.

In response to stakeholder concerns, the Regulations have provided an exception for contact by referral by exempting a single message that is sent as the result of a referral from someone with a family, personal, business or non-business relationship both with the sender and with the recipient provided that the message discloses the full name of the individual or individuals who made the referral.

CASL requires consent for the installation of computer programs unless it is reasonable to believe that the person has consented to such installation and the program is a cookie, HTML code, Java Scripts, an operating system, or any other program that is executable only through the use of another computer program which was installed with express consent. As mentioned above, provisions relating to the installation of computer programs will come into force on January 15, 2015.


CASL has introduced a robust enforcement regime which gives the CRTC sweeping powers to investigate and impose harsh monetary penalties. Failure to comply with the new rules could cost individuals up to $1 million and businesses up to $10 million per violation. Individuals and businesses will also be able to apply to a court for a private remedy against any person that contravenes the legislation, and the court may award statutory damages as high as $1 million. Directors, officers, or agents of corporations can be held personally liable. However, this private right of action will come into force July 1, 2017.

Under the Regulations, a person who obtains consent on behalf of a third party may authorize any person to use consent, but such consent is valid if a recipient of CEMs is provided with an effective unsubscribe mechanism by the authorized person, so that the recipient may withdraw consent at any time. When consent to receive CEMs from a third party is withdrawn by the recipient, the party who obtained consent must notify every other party to whom the consent was provided that it is withdrawn. This can cause additional problems for small businesses that do not run their advertising campaigns, but hire a third party contractor to perform marketing services. The Regulations would make both the business and the third party potentially liable and, thus, could force advertising agents to charge higher fees for their services to ensure compliance.

What You Need to Consider

The following is a list of measures businesses should consider undertaking prior to CASL coming into force on July 1, 2014:

  • Review electronic communications to identify those that fall within the definition of CEMs;
  • Go through your contact lists and determine whether or not express consent has been obtained or is required, or whether implied consent may be applicable;
  • Update your contact lists with express consent prior to July 1, 2014 if needed;
  • Implement or modify a policy setting out the contents of a request for consent to send CEMs, including but not limited to an identity of a sender, the sender's contact information which must be valid for a minimum of 60 days, an effective unsubscribe mechanism (by providing an electronic address or a link to a web page), and directions on how to withdraw consent, etc.;
  • Implement or modify a policy setting out prescribed disclosure with respect to computer programs; and
  • Adopt a practice of monitoring mailing lists in order to track consents and/or refresh consents in a timely fashion (as transitional period may eventually "expire" or consent may be withdrawn).

Although the implementation of CASL-compliant practices is likely to entail cost, it is important to act proactively and implement consent-based online marketing practices before CASL comes into force and before sending a request for consent in itself becomes a violation of the law.

Originally published February 2014

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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.