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
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Related Articles
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
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