Canada: Merry Emails In Compliance With CASL

Last Updated: January 2 2015
Article by Anca M. Sattler

Holidays are a time to be merry, to socialize, to meet new people and to spread the word about your business and activities. We often make new contacts and set the foundation for new business relationships during this time of the year. But now that Canada's Anti-Spam Legislation ("CASL") restricts our electronic communications, how can we email these individuals after the event? Can we add their names to our contacts distribution list? What can we do to maintain contact with these individuals while ensuring compliance with CASL?

Organizing a Holiday social event

Many organizations seek to promote their activities during the months of November and December, by putting together events for their members, clients or interested individuals in the community. To follow up with persons attending these events by sending electronic messages with commercial content, the organizations have to comply with CASL.

A broad category of emails qualify as "commercial electronic message" under CASL and many emails that at first blush appear non-commercial, could be captured by this definition in CASL. For example, a holiday greeting email may be considered commercial if one of its purposes is to promote your organization or an individual. Be aware that even hyperlinks within the message leading to content on a website could trigger the applicability of CASL and the requirements within.

Once you have established that an email is commercial in nature, you must ensure that you have the requisite consent from the recipient to receive this message. For example, you may already have the implied, or even express, consent of current members or clients of your organization. If your organization is a registered charity, a political party or organization or a candidate for public office you have the implied consent of those individuals who attended the event and you can email that individual for a period of two years following the event, or until they unsubscribe.

If your organization does not fall under one of these categories, you cannot rely on this exception to the requirement of consent. You may however, email those individuals if they have disclosed their email address to the organizers of the event, without indicating that they do not wish to receive unsolicited commercial emails and the message you are about to send is related to the person's business role, function or duties in a business or official capacity. What this means for you: you will likely skip the holiday greeting cards and get right to business in the new year. The good news is that you can rely on the implied consent of such individuals indefinitely, or until they unsubscribe.

However, implied consent may also arise as a result of your guests having purchased a good or a service from your business or organization within the previous two years. Not to mention that the event itself may have been a paid event, which would give rise to implied consent from the attendee to receive further commercial messages from your organization.

If your organization already has the express consent of the attendees at your Holiday social event, before emailing the individuals any correspondence with commercial content, you want to ensure that (1) express consent exists (i.e. the person has not unsubscribed) and (2) that the scope of the express consent includes the sending of the type of correspondence you intend to send.

Remember that, regardless of the type of consent relied upon, you have to comply with the disclosure and unsubscribe requirements within the content of each message.

Attending an event

We all look forward to attending holiday events organized by businesses or business associations, as usually there is great food, coveted prizes and especially great networking opportunities. We stack up on business cards and always hope to meet the next great client or partner, and look forward to introducing ourselves to potential clients.

Attending one of these events and disclosing our email address allows the organizers of the event to rely on our implied consent to receive further commercial electronic messages from that organization, unless we specify that we do not wish to receive unsolicited emails. But even if, in the midst of all the excitement, we forget to express our wish not to receive commercial emails, we always  have the option to unsubscribe with every email received from the organizers of the event.

But how can we, as individuals, follow up with the contacts that we make during one of these events? The principle is the same. If an individual hands you their business card or discloses their email address to you, you may be able to follow up with an email related to that person's business role, function or duties within their business or official capacity.

Obtaining a business card is not necessarily an invitation to send unsolicited emails, and you can only send them messages related to the business on their business card. However, verbal consent can be relied upon under CASL and you may confirm with the individuals that it is acceptable to contact them later. Obtaining express consent from that individual allows you to send them your cheerful holiday card as well as commercial and promotional emails, regardless of their business functions. Nonetheless, since the onus is on you, the sender of the message, to show that you have express consent, it is likely preferable to drag out that business card rolodex that you received as a holiday gift many years ago, and store the paper business card.

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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