United States: Canada’s New Anti-Spam Law Becomes Effective July 1, 2014

The Canadian Anti-Spam Law (CASL) and its corresponding regulations become effective on July 1, 2014. CASL was enacted "to promote the efficiency and adaptability of the Canadian economy" by regulating commercial electronic messages (CEMs), the transmission of data in electronic messages, and the installation of computer programs on another person's computer in the course of a commercial activity.

CASL applies to nonprofit organizations (NPOs) that send electronic messages into or from Canada. Failure to comply with the law can carry penalties of up to $1,000,000 for violations by individuals and $10,000,000 for violations by corporations. In short, CASL requires NPOs which send CEMs in Canada to: 1) obtain consent; 2) provide disclosure; and 3) provide a way to opt-out. As such, associations and charities will need to evaluate their electronic communication practices.

CASL Only Applies to CEMs in Canada

CASL will apply to CEMs that are either sent from, or accessed on, a computer system in Canada, except where a CEM is sent by a person who reasonably believes the message will be accessed in a "foreign state" listed in the law - provided that the CEM conforms to the spam law of that state.

In order to be a CEM, at least one of the message's purposes must be to encourage the recipient to participate in a commercial activity, e.g., buy a product or service, however an expectation of profit is not required. CASL excludes certain messages from both the content and consent requirements, including CEMs sent:

  • To friends or to family
  • Within or between organizations that have a relationship where the message relates to the affairs of the organization
  • By a registered charity (see definition below) and political parties for fundraising purposes
  • Pursuant to a legal obligation or requirement
  • Within a limited-access and confidential account

The following are not considered CEMs under CASL: interactive two way voice communications; messages sent via facsimile to telephone accounts; and voice recordings sent to a telephone account.


The most significant requirement of CASL is that recipients in Canada must consent to receiving CEMs. Consent may be in the form of express consent or implied consent.

For express consent, the request must:

  • Identify the request for consent in a "positive or explicit" manner – person would need to perform an affirmative act such as checking a box – pre-checked boxes or an opt out system are not acceptable;
  • State the purpose for which the consent is sought;
  • Identify and provide the business name of the person seeking consent and, if different, identify and provide the business name for the person on whose behalf consent is sought;
  • Provide the mailing address for the sender and one or more of the following: telephone number, website or email address for the person or entity seeking the consent; and
  • State that consent may be withdrawn.

While consent may be given orally or in writing, written consent is strongly recommended as the sender has the burden of proof as to whether someone provided the required consent. Once the consent has been obtained, the NPO should retain records of all consents provided by Canadian accounts.

Implied consent may exist where:

  • There is an existing business or non-business relationship between the sender and the recipient.
    • An existing business relationship exists where either the recipient purchased a product within the last two years or the recipient and sender have a certain form of an existing written contract or the recipient made an inquiry or application within the last six months. This form of consent is valid for two years and can be continuously renewed with subsequent purchases, contracts, or inquiries.
    • A non-business relationship may exist where either a donation or a gift was made by a person to a registered charity, a political party, organization or candidate within the last two years or a person has performed volunteer work for the CEM sender or attended a meeting of the sender within the last two years and the sender is a registered charity, political organization, party or candidate or the recipient is or has been a member, during the last two years, of the sender and the sender is an association, club or volunteer organization. *This form of consent is only valid for a three year transition period, ending July 1, 2017.
  • Recipient has conspicuously published its address or disclosed it to the sender and has not previously opted out of receiving CEMs and the email is relevant to the recipient's business, role, functions, or duties.

Disclosure and Opt-Out

In addition to the consent requirement, all CEMs must be sent from a valid email address, identify the person who sent the message, including a mailing address and either an email address or telephone contact, and must allow for an option to unsubscribe from future CEMs from the sender.

Guidance for Associations

Members & Previous Members

While CASL does apply to CEMs sent by NPOs such as associations, the regulations provide that consent to receive CEMs is implied during the transitional period by virtue of membership in the NPO. "Membership" means the status of having been accepted as a member of a club, association or voluntary organization in accordance with its membership requirements. In order to qualify as a club, association, or voluntary organization, the NPO must meet the following requirements:

  • a non-profit organization,
  • organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit, and
  • no part of its income is payable for the personal benefit of any member, proprietor or shareholder unless that entity is an organization whose primary purpose is the promotion of amateur athletics in Canada.

If the individuals qualify as members and the organization meets the above requirements, the NPO can send CEMs to its Canadian members without having to obtain any new consent. Note: the CEMs must only be sent to current members or individuals who have been members during the last two years. The NPO must still comply with the disclosure and opt-out requirements of CASL.


For Canadian non-members (who have not been members during the two years prior to the CEM date), the NPO will need to meet all three requirements for CEMs in order to comply with CASL unless the NPO can establish that the non-member has an existing business or non-business relationship with the NPO such as made a purchase from the NPO, volunteered for the NPO, made a contribution to the NPO or attended a conference of the NPO. While the NPO likely already meet the disclosure and unsubscribe requirements, the affirmative consent requirement will necessitate a change in practice in order to obtain express consent for Canadian non-members to receive CEMs.

Guidance for Charities

CASL specifically exempts charitable fundraising activities conducted by registered charities. The definition of a "registered charity" is

  • a charitable organization, private foundation or public foundation, within the meanings assigned by subsection 149.1(1), that is resident in Canada and was either created or established in Canada, or
  • a branch, section, parish, congregation or other division of an organization or foundation described in paragraph (a), that is resident in Canada and was either created or established in Canada and that receives donations on its own behalf that has applied to the Minister in prescribed form for registration and that is at that time registered as a charitable organization, private foundation or public foundation.

If the NPO meets these requirements, then the CEM will fall within this exception if the CEM has as its primary purpose raising funds for the charity.

As many U.S. based charitable and other 501(c)(3) NPOs may not be able to meet the "registered charity" requirements, such NPOs will need to defer to the implied consent categories noted above to ensure that recipients are current (or previous within the last two years) members, donors or volunteers. For potential donors outside of this scope, consent will need to be obtained.

Frequently Asked Questions

What do we do now before July 1?

Check your marketing lists for Canadian addresses, segregate those addresses from the rest, identify which are current members or have been members within the last two years, and flag non-members within the two year window. For non-members who are beyond two years and for which no other implied consent exists, obtain express consent before July 1, 2014 or remove them from your marketing lists.

What do we do on July 1 or thereafter?

For those individuals residing in Canada for which the NPO cannot establish either express or implied consent, such individuals may only be contacted by telephone or mail to obtain their consent to receive CEMs. The sending of a request for consent via email after July 1 would be considered a violation of the law. In order to establish oral consent was given by an individual, the NPO would need to keep record such that an independent third party could verify the consent or have a complete and unedited audio recording of the individual's consent.

How specific do we need to get when we describe the kinds of communications we'll be sending on the opt-in form?

The form should include a broad description of the various types of communications the NPO may send. The NPO does not need to provide a specific list; rather, it may merely say messages relating to the products and services of the NPO or third party products which the NPO may be of interest to you or something similar would be acceptable to include in the opt-in email.

Is there an expiration date for express consent given to a NPO?

There is no timeline associated with express consent. Once it has been obtained, it is valid until the individual withdraws it. However, there are time limits for implied consent.

When a member's membership status expires, can we contact the prior member to renew?

Assuming that the individual was a member within the last two years, the NPO would have the ability to contact the previous member based on the pre-existing, non-business relationship. In addition, there is an exception to the consent requirements under CASL which says that the NPO can send a message that provides notification of factual information about the ongoing membership of a person to whom the message is sent, provided the NPO includes the disclosure and opt-out information and does not include other commercial content within such emails.

Does the NPO need to receive consent for people who volunteer for the NPO?

There is a valid argument that volunteers would have an existing "non-business" relationship with the NPO and therefore consent is implied as noted above, subject to the time limits of the transitional period. The NPO must still include, in its CEMs, an opportunity for the volunteer to opt-out of CEMs and contact information for the sender. These requirements apply only to CEMs and would not apply to messages specifically dealing with the individuals' involvement on the committee or with the project.

Is implied consent provided by a member company applicable to employees of the company in their individual capacity?

Unfortunately, CASL is not particularly clear on this point. Some of the governmental agency comments on the CASL have stated that there may be persons within organizations that are able to provide consent on behalf of all of the employees or members of an organization. However, there has been no level of clarity as to the level of individuals in the organization who is able to provide such consent and therefore adding employees of a member organization to a mailing list would be with some risk. The safer approach would be to have the employers expressly consent which would be an unambiguous consent. The individual that is acting on behalf of the organization would be providing his consent as the representative of that organization.

Can the NPO send CEMs to current sponsors and exhibitors in Canada?

If the NPO and the recipient have an existing business relationship, consent is implied provided the recipient company has purchased a product or service within the two years prior to the sending of the email.

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 Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Klein Moynihan Turco LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Klein Moynihan Turco 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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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