In 2014, the anti-spam provisions of Canada's Anti-Spam
Legislation (CASL) came into force, creating a wide array of
compliance requirements for businesses. CASL prohibits a person
from sending or causing or permitting to be sent to an electronic
address a commercial electronic message unless (a) the message is
exempt or (b) the message meets the formality requirements and the
person receiving the message has consented to receiving it. While
the CRTC has only publicly acknowledged one enforcement action
under CASL as of February 26, 2015, this series of posts,
"Defending Enforcement under CASL," considers
the foundations of a compliance defence to liability under
A person may be liable for failure to meet the formality
requirements of CASL. Generally speaking, CASL provides that a CEM
the name of the
sender, the name under which the sender carries on
business, and the name of the person on whose behalf the message is
sent (if applicable);
the mailing address
and either (i) a telephone number, (ii) an email address or (iii) a
web address; and
an effective unsubscribe
Unless an exemption is available for
certain types of commercial electronic messages (see our blog post
Defending Enforcement Under CASL: Establishing an
Exemption is Applicable), compliance with CASL requires both
adherence to message formality requirements and the express or
implied acquisition of consent (see our blog post Defending Enforcement Under CASL: Establishing
Consent). The burden of proof under CASL falls to the
infringing party to demonstrate compliance with the act. If
required to prove compliance, an enterprise or individual must
retain records of sent messages and show that the unsubscribe
mechanism is effective and functional for legislated periods (which
may require server logs and a record of unsubscribe requests), and
that the mechanism was able to be "readily performed."
The mechanism should also establish that, where an individual
revoked consent to receive any communications from the sender, this
consent was also revoked from any other person who was authorized
to use such consent. Under CASL, the sender must have given effect
to the unsubscribe request within ten (10) business days of the
request being made – bringing forth records of this timeline
may also be required if an enforcement action occurs.
Given limitation periods under CASL, server logs and unsubscribe
mechanism records should be maintained for at least three
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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