Canada: CASL Confusion: What July 1 Really Signifies For Marketers

July 1, 2017 is not only Canada's 150th birthday -- it is also marks three years since Canada's Anti-Spam Legislation (CASL) has been in force. While Canadian businesses are unlikely to celebrate the latter anniversary with barbecues and fireworks, July 1 will signify an important change in the way that CASL will apply.

Unfortunately, there seems to be some confusion about what the approaching deadline really means for marketers. From a CASL perspective, July 1 is important for 3 reasons:

Private right of action

Let's start with what it doesn't mean: July 1 will no longer mark the coming into force of the private right of action contained in the law. This provision would have allowed civil suits to be filed against individuals and organizations for alleged violations of the law. In addition to suing for actual damages, the provision also would have allowed plaintiffs to claim statutory damages (which need not be proved) of up to $200 – including for receipt of a non-compliant email message.

The order that proclaimed CASL in force as of July, 2014, had originally set July 1, 2017 as the day on which the private right of action provisions in the law would come into force. However, the government recently amended this order so as to suspend indefinitely the coming into force of the private right of action.

In a news release announcing the suspension of the implementation of this statutory cause of action, the government noted that it was acting "in response to broad-based concerns raised by businesses, charities and the not-for-profit sector." The precis to the order indicated that the original coming into force date was being suspended "in order to promote legal certainty for numerous stakeholders claiming to experience difficulties in interpreting several provisions of the Act while being exposed to litigation risk."

Parliamentary review

The second important consequence to the arrival of July 1, 2017, is that CASL includes is a section requiring a general review, after that date, of the provisions and operations of the Act by a parliamentary committee.

The government has indeed announced – when it suspended the private right of action - that it will ask a parliamentary committee to review the legislation, in keeping with this requirement of the law.

While it is difficult to know at this time precisely how that review might unfold, the legislative provision itself is very broad. Accordingly, we may see in the near future a review that will take into account the law as a whole, followed by recommendations to the government for possible reform.

The law has many detractors in the business community, which have raised concerns relating to issues such as vagueness and impracticality of the law, disproportionate enforcement and penalties and real damage to economic interests. That said, the law also has many fans, which see the regime as an important new protection for consumers. As a result, the pending committee hearings are expected to be lively.

Expiry of transition period for prior business relationships

Finally, July 1, 2017 will mark the end of the initial transition period during which organizations are deemed to have implied consent to send commercial electronic messages to recipients based on certain types of business relationships that arose prior to the law coming into force.

The law deems implied consent to exist where the sender of a message has an "existing business relationship" or an "existing non-business relationship" with the recipient. While there are several narrow scenarios that give rise to these defined relationships, for most commercial businesses, an existing business relationship most commonly arises through the purchase of goods or services. In such a case, the law normally deems an organization to have implied consent to send electronic marketing messages to a customer for a period of two years after such a purchase, unless they otherwise unsubscribe.

However, for the initial 3-year transition period, CASL deemed implied consent to exist for business relationships that arose at any time before July 1, 2014 (when the law came into force), without regard to the two-year limitation. In other words, during the transition period, the law effectively deemed an organization to have implied consent to send commercial electronic messages to a customer that had made a purchase at any time before July 1, 2014.

The stated purpose of this transition period was to provide organizations with the opportunity to obtain express consent. As a result, in the months leading up to the end of the transition period, many organizations have been reaching out by email to their distribution lists in order to confirm consent.

While such outreach campaigns make good sense for some businesses, seeking express consent at this time is not required in all cases. The real impact of the expiry of the transition period will vary from business to business, based on a number of factors, including the following:

  1. If an organization is sending commercial electronic messages based on an existing business relationship that arose from a purchase made after the law came into force, then the transition period does not apply. These types of business relationships are subject to the normal two-year limitation imposed by the law. Indeed, for transactions that occurred in 2014 and early 2015, this period will have already expired.
  2. If express consent was collected prior to July 1, 2014, in compliance with applicable privacy law, that consent continues to be valid, even if the request did not meet the form requirements now imposed by CASL. Businesses with reliable records of that type of consent need not reach out now to secure an additional consent.
  3. If an organization is likely to have at least one sale transaction every two years with addressees on its email marketing list, it may elect not to secure express consent, relying solely on implied consent arising from its existing business relationships. Much depends on the typical business cycles for a particular industry/service category, but many businesses have found that they can reasonably attain marketing objectives solely through reliance on implied consent. Of course, where a given addressee does not make a purchase within the allowed 2-year period, they must be dropped from the list, but some organizations find this churn to be manageable, and also find that, in any event, marketing offers are less likely to be effective with respect to such "stale" customers. Recognizing that consent outreach campaigns tend to have a low rate of success, continued reliance on existing business relationships may be an attractive option for some companies.
  4. Organizations that engage in B2B marketing may not be affected by the expiry of the transition period. The transition period affects only existing business relationships and existing non-business relationships; it does not affect implied consent that may arise under the law as a result of conspicuous publication or direct disclosure of a business electronic address, nor does it affect to general B2B exemption found in the Electronic Commerce Protection Regulations.
  5. Similarly, other types of businesses that rely on exemptions set out in the Regulations need to reach out now to obtain express consent -- for example, registered charities sending fund-raising messages, or messages sent and received on an electronic messaging service where the information and unsubscribe mechanism required by the law is available on the user interface through which the message is accessed.

Businesses are advised to carefully review their own circumstances and to seek advice as to the best approach to deal with the issues arising from the end of the transition period.

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.

Similar Articles
Relevancy Powered by MondaqAI
Gardiner Roberts LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Gardiner Roberts LLP
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions