Canada's anti-spam law (CASL) came into effect on July 1st,
and is one of the most stringent anti-spam regimes in the
An electronic communication (such as an e-mail or text message)
that promotes commercial activities (such as marketing a business
to its customers) is a "commercial electronic message"
(CEM) that is subject to CASL.
CEMs may be sent only with the express or implied consent of the
recipient, and they must contain certain identification information
and an easy-to-use unsubscribe mechanism. Consent is implied under
a few circumstances specified in CASL, and the onus is on the
business to prove express or implied consent.
On the other hand, the U.S. does not have a consent requirement
in its federal anti-spam legislation, and the focus is merely upon
an unsubscribe mechanism.
CASL was subject to some controversy and debate prior to July
1st although it was not "top of mind" for many
businesses. Several people expressed the opinion that the consent
requirement was too onerous for Canadian businesses who conduct
reasonable marketing activities, and that CASL would not in fact
change the amount of spam Canadians receive from foreign
jurisdictions. Views were also expressed that CASL was too complex,
and that it was too costly for Canadian businesses to comply with
it. Others thought that CASL was progressive and reasonably
necessary to respect the privacy of individuals. In any event, CASL
is now here, and appears to be here to stay.
A key situation where consent is implied is where the sender and
the recipient have a "business relationship". A business
relationship is deemed to exist if the recipient purchased products
or services from the business within a two-year period prior to the
date of the CEM. In other words, consent is implied regarding
fairly recent customers.
A three-year grace period exists. For the first three years
after July 1st, the two-year period will not apply, provided that
the customer does not withdraw consent and the relationship
included the exchange of CEMs.
CASL is enforced by the Canadian Radio-television and
Telecommunications Commission (CRTC). Complaints may be filed by
the public with the CRTC. According to several press reports, Manon
Bombardier, the CRTC's Chief Compliance and Enforcement
Officer, said that over 1,000 complaints were filed with the CRTC
in the first few days after July 1st. Overall, it is too early to
tell whether CASL will make a material difference to the number of
annoying e-mails and other electronic communications that Canadians
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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