Canada: Canada's Anti-Spam Regulator Continues To Issue Advisories, Hunt For Infringers: Key Messages For Business

This fall, more than a year after Canada's anti-spam legislation (CASL) came into force, it is abundantly clear that the regulator, the Canadian Radio-television and Telecommunications Commission, is taking its new responsibilities very seriously.

In the latest developments, the CRTC recently issued an Enforcement Advisory and further Guidance on Implied Consent.

The CRTC's message is loud and clear − it will impose penalties, regardless of good intentions. 

The latest guidance

In addition to its active enforcement investigations, the CRTC continues to publish advisories and guidance on CASL compliance.  On September 4, 2015, the CRTC issued two key documents, an Enforcement Advisory for the Professional Training Service Industry  and Guidance on Implied Consent.

The Enforcement Advisory for the Professional Training Service Industry notes that the CRTC has observed businesses are sending commercial electronic messages (CEMs) to email lists gathered from publicly available websites.  The CRTC reinforces that the publication of an email address online does not mean the user has provided the requisite consent (express or implied) to receive any particular CEM under CASL.  In light of this Advisory, we can expect enforcement activity against email list users to ramp up.

The CRTC's Guidance on Implied Consent, issued at the same time as the Advisory, reinforces the three governing principles of CASL.  To send emails promoting a product or service, an organization must:

(1) obtain consent (either express or implied, depending on the circumstances)

(2) provide sufficient identification information and

(3) include an easy to use unsubscribe mechanism in each and every email. 

The key messages in the Guidance for businesses are the following:

  • Express consent must be proactive, and provided orally or in writing. 
  • Consent may not be obtained by email unless there was implied consent to send the requesting email. Otherwise the email request for consent is a CEM sent in violation of CASL. 
  • Implied consent can be relied upon where there is an existing business relationship with the recipient.  This is defined relatively narrowly.  The recipient must have transacted business with the sender within the past two years, or the recipient must have made a business inquiry of the sender within the past six months. 
  • When a business is purchased, the new owner can rely on implied consents (as well as express consents that are clearly assigned to the new owner) by having expressly acquired the existing business relationships of the seller.  However, sending emails to recipients on a purchased email list which is not purchased in connection with an entire business is not compliant with CASL unless express consents were obtained by the seller which encompass the purchaser, because the purchaser of a list alone, unless  purchasing the entire business, cannot rely on the existing business relationship rule for implied consent.
  • Implied consent can be relied upon where a person makes their email address publicly available by publishing it on a website only if the publication was not accompanied by a statement indicating they do not want to receive CEMs at that address, and the message relates to the recipient's business role, functions or duties in an official or business capacity.  It is significant that the CRTC has indicated it will take a granular approach to assessing whether the message content specifically relates to the functions or duties of the precise recipient.  Examples provided by the CRTC indicate that it is not enough for the content of the message to have some relation to the general business of the organization in which the recipient is employed.  Rather, the content of the message must relate to the precise role of the recipient within the organization.  It remains to be seen whether the CRTC's approach in this area will be enforced by the courts if challenged.
  • The CRTC has emphasized that the indicia of express or implied consent must be demonstrably proven by organizations to the CRTC's satisfaction.  To prove compliance, a company should consider maintaining hard copy and/or electronic records of the following:
    • CEM policies and procedures
    • all contemporaneous unsubscribe requests and resulting actions
    • all evidence of express consent (e.g. audio recordings or completed forms) from consumers who agree to receive CEMs
    • CEM recipient consent logs
    • CEM scripts
    • CEM campaign records
    • staff training documents
    • other business procedures and
    • official financial records.

It is absolutely key for businesses to remember that you not only have to obtain the requisite consents; you also must prove that you had those consents if called to task by the regulator.  Proper record-keeping is crucial.  The CRTC will not accept that express consent was obtained based only on evidence of an owner or employee as to the general processes followed by the business.

Class action lawyers are likely following the regulator's moves closely. CASL grants a private right of action, which will come into force on July 1, 2017.   Those who believe they have been affected by non-compliance, including persons who allege they received a CEM without their consent, will have standing to commence a lawsuit, and class actions are highly probable.  Notably, there has been much debate in the Canadian legal community as to whether the right of action commencing on July 1, 2017 will be retroactive, such that CEMs dating back to July 2014 will be actionable.

If your organization needs a CASL Compliance Audit or is engaged in a dispute with a regulator, please contact any of the authors.

For background information and general guidance on CASL, please consult our CASL Resource Centre.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.