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