Canada: Canada’s Anti-Spam Legislation—Post July 1st Recap

Last Updated: January 5 2015
Article by Ralph H. Kroman

Canada's anti-spam law (CASL) came into effect on July 1st, and is one of the most stringent anti-spam regimes in the world.

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 receive.

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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Ralph H. Kroman
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