North American marketers take note: Canada is set to finalize
one of the toughest anti-spam laws in the world. Canada had fallen
behind when it came to introducing anti-spam legislation, but it is
now making up for lost time. Ottawa's new Bill C-28 – known as
"CASL" and expected to be finalized early in 2013
— has severe fines for violations and is viewed by many
as too tough.
In a nutshell, CASL requires a business to obtain express or
implied consent from the recipient before it sends out commercial
electronic messages. CASL is not limited to email; consent must be
given for any electronic message, which could also
include messages sent via social media, text messaging, instant
messaging, sound or video.
It applies to all messages sent from, or received in, Canada,
which means American firms marketing in Canada fall under its
jurisdiction. A recent study found 60 per cent of American
marketing executives were completely unaware of the new law.
Individuals who breach the law can face penalties of up to $1
million, while corporations are liable for as much as $10 million.
Officers and directors may also be held liable if they participated
in, or acquiesced to the breaches. The act also creates a private
right of action for CASL violators, paving the way for potential
anti-spam class actions, with remedies capped at $1 million per
The Canadian law is more stringent than its U.S. counterpart,
2003's CAN-SPAM Act, meaning most U.S. firms will not
be compliant when CASL comes into force. CAN-SPAM allows companies
to send messages unless consumers opt-out with an unsubscribe
mechanism. CASL reverses the onus, requiring recipients to opt-in
by consenting up front.
Our friends at Canadian law firm Blakes have put up an excellent
microsite resource containing a wealth of
information on CASL.
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.
Specific Questions relating to this article should be addressed directly to the author.
The 2010 theft of an unencrypted laptop containing confidential health care information made front-page news in 2013, not because a huge number of patients were affected, but for the exact opposite reason.
Entities regulated by the Securities and Exchange Commission, such as broker-dealers and investment advisers, and entities regulated by the Commodity and Futures Trade Commission, such as futures commodity merchants, commodity trading advisers and commodity pool operators will be required to join the party.