United States: Canada's Anti-Spam Law, Poised To Take Effect, Requires Action Now

The Bottom Line

Advertisers that have not yet begun to do so should develop plans and procedures to comply with the CASL for Canadian residents on their email marketing lists. Those plans must include confirming or re-opting-in users, methods to obtain express consent for receiving future CEMs, systems to remove people who withdraw their consent or do not provide it in the first instance, and ways to adjust to new regulations as they are issued and take effect. The penalties are potentially too severe to delay any longer.

Canada's "opt-in" anti-spam law (the CASL) takes effect on July 1, 2014. Although certain of the provisions phase in after July 1, advertisers that use "Commercial Electronic Messages" (CEMs) – a term that includes email but that is not limited to email – should immediately begin to take steps to comply since they may be unaware that their existing email marketing lists may no longer be compliant with Canadian law.

Key Features

The CASL is one of the more stringent anti-spam laws ever enacted, governing CEMs sent from or accessed in Canada (but not those that merely are routed through Canada). Industry Canada explained in its Regulatory Impact Analysis Statement regarding the CASL regulations and explanatory website that the CASL was intended to deter "spam" and other damaging and deceptive electronic threats such as identity theft, phishing, spyware, malware, and botnets from occurring in Canada – and to "help drive spammers out of Canada." It is not certain that the CASL will reach its goals, but it most certainly will require companies to re-examine their email marketing efforts.

As Of July 1st, Marketers:

  • Must not send CEMs unless consumers have expressly opted-in orally or in writing – including electronically – or impliedly have consented to receive CEMs from them, as can occur with certain narrowly and explicitly defined existing relationships;
  • Must include their own prescribed contact information and a free unsubscribe mechanism in CEMs they send;
  • Face penalties up to $10 million as well as potential civil charges – including for officers and directors – for violating CASL.

Express Consent

Consent is at the heart of the CASL. Marketers in the United States are familiar with the "opt-out" regime set forth by the CAN-SPAM Act which permits a company to continue sending commercial emails until a recipient chooses to opt-out of receiving further emails. CASL, on the other hand, is an "opt-in" law which, in most cases, requires prior consent from a recipient before the first CEM is sent. Somewhat circularly, messages that request consent to send further CEMs are classified as a CEM that would require consent to send.

Before the July 1, 2014 effective date, companies can send emails asking for recipients to provide express consent, provided they comply with the existing Canadian privacy legislation. Under CASL, this request for express consent must contain the name of the company seeking consent, specified contact and other information about the company seeking the express consent and similar information about any third parties for whom express consent is sought. The request must have an explanation of the purpose for the request for consent, and must state that consent may be withdrawn.

CASL will impose similar disclosure requirements on CEMs. CEMs sent after CASL comes into effect will be required to contain the name of the company who sent the message, if different, the name of any company on whose behalf they sent the message, and specified contact and other information about one of those companies. In addition, recipients must be provided with an ability to unsubscribe from further messages – or any specified class of further messages, – from the sender of the message or the person on whose behalf the message is sought. The unsubscribe mechanism must operate through the same electronic means as the CEM (for example, email and a website link) must operate easily and at no cost to them.

Implied Consent

The CASL permits consent to be implied in a narrow range of circumstances and for a finite period of time, such as where a company has an existing business relationship with a recipient of a CEM. Under the CASL, "existing business relationship" is a strictly defined term, and a company has an existing business relationship with a recipient who has purchased or leased a product from the company, entered a contract regarding something other than a purchase, lease, or business opportunity with the company within the two years prior to the message, or made an inquiry or application regarding a purchase or lease to the company within the six months prior to the message.

Where a company has an "existing business relationship" as defined in CASL that exists prior to July 1, 2014 and the relationship includes the sending of CEMs as of that date, CASL includes a transitional provision that deems these pre-existing consents to last for three years, until July 1, 2017, notwithstanding the provisions regarding the expiry period for these relationships that arise after CASL is in effect.

Implied consent also can exist where a person has published his or her electronic contact information on a social media site or business website without stating that communications are not welcomed, as long as any CEMS that are sent relate to the recipients' business. Implied consent may always be withdrawn.

Phase-In

Canadian regulators have recognized the burdens imposed by the CASL and their implementing regulations, and have provided a phase-in period for some of the most troublesome provisions.

In particular, the CASL sections that provide for enforcement of the CASL through a private right of action will not come into force until July 1, 2017 – although the CASL is enforceable by the authorities beginning this July 1st.

Limited Exclusions

There are some limited exclusions under the regulations. For example, excluded from all requirements of the CASL are CEMs that are:

  • Sent within an organization and relate to its activities;
  • Sent between organizations that already have a relationship, where the message concerns the activities of the organization to which the message is sent;
  • Sent and received within limited access secure and confidential accounts to which only the provider of the account can send messages, such as many banking websites;
  • Solicited or sent in response to complaints, inquiries, and requests;
  • Sent due to a legal obligation or to notify or enforce a legal right; or
  • Sent by or on behalf of registered charities for fundraising purposes.

The regulations also provide an exclusion for "third party referrals." This exclusion applies where there is an existing "personal," "family," "business," or "non-business" relationship – as each is defined for the purposes of CASL – between a business and an existing client and the existing client refers a prospective client to the business by providing the prospective client's electronic address information. In a case like this, the regulations permit the business to send a single message to the prospective client, as long as that message includes the full name of the referring party, states the message was sent as a result of the referral, and the message includes the identification and unsubscribe requirements required by the CASL for other CEMs.

Moreover, the regulations provide that when consent to receive messages from a third party has been withdrawn by an individual, the original requestor must notify each third party to whom the consent was provided that the consent has been withdrawn.

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.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

General

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