7 Key Questions Canadian Business Owners Need to Ask About CASL

Business Law

Canada’s sweeping anti-spam legislation (CASL) goes into effect on July 1st, 2014.  This new legislation means big changes for many of Canadian businesses that have begun to rely on the internet for a majority of their client and consumer communications.  These seven questions (and their corresponding answers) will help you to determine what a commercial electronic communication is, what type of consent is required by your customers and much more.

Do I send “Commercial Electronic Messages”?

  • A Commercial Electronic Message (CEM) is a message whose purpose is to encourage participation in a commercial activity
  • CASL does not apply to:
    • non – commercial activity
    • voice, facsimiles or auto-recorded voice calls (robo-calls)
    • broadcast messaging including tweets and posts

Is My Message Exempt?

CASL does not apply to your message if:

  • You have a Personal Relationship with the recipient. Meaning:
    • Individuals have a personal relationship, as reasonably and objectively determined; and
    • you have had direct, voluntary, two-way communication
  • You have a Family Relationship with the recipient. Meaning:
    • marriage, common-law, partnership or any legal parent-child relationship exists; and
    • you have had direct, voluntary, two-way communication

CASL does not apply to messages that are sent:

  • Within or between businesses, where there is an ongoing relationship;
  • in response to a request
  • to enforce a legal right or obligation
  • via closed messaging systems, for example;
    • proprietary system
    • messaging system where ID and unsubscribe included in platform (conditions apply)
  • To a foreign jurisdiction in compliance with its Anti- spam law;
  • by registered charities raising funds (conditions apply)
  • by political candidates or organizations, soliciting political contributions

Are You Sending to An Electronic Address?

  • Under CASL an electronic address could be:
    • an email account
    • a telephone account
    • an instant messaging account
    • any similar account

Do I Have Consent?

There are two types of consent that are recognized; express consent and implied consent. Further details found below.

Express Consent

  • An individual must take action to “opt-in” to a stated purpose
  • Did the recipient say or click “yes” to receiving your CEM?

Implied Consent

  • Can you show that you have an existing business or non-business relationship?
  • Did the recipient disclose their address to you?
  • Is the address published? Is there a statement stating they do not wish to be contacted?

When is Consent Not Required?

  • Providing quotes or estimates requested by recipient
  • Delivering a product good or service, as authorized by recipient (includes updates and upgrades)
  • Sending messages that facilitate or confirm transactions
  • Providing information about:
    • warranty, recall, safety or security
    • ongoing use or ongoing purchases
    • ongoing subscription, membership, accounts, loans or similar
    • employment relationships or benefit plans

What Must Be Included in Each CEM?

If the prohibition provisions of CASL apply, you must;

  • Clearly identify yourself
  • Provide a method where the recipient can readily contact you
  • Provide a working unsubscribe mechanism:
    • Functional for 60 days
    • No cost to recipient
    • Via same means as CEM unless impracticable
    • Include either electronic address or link
    • Must process without delay

Can You Show Where You Got Each Electronic Address?

  • You need to track how you obtained consent of each individual to whom you send CEMs
  • Note: A message sent seeking consent to send CEMs is also considered a CEM

Here is a copy of the information in printable format for easy future reference.


Erin Easingwood
Partner –  Corporate/Business Law
Lindsay Kenny LLP – Langley Office

Paul Kennedy
Associate in Corporate/Business Law
Lindsay Kenney LLP – Langley Office