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
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.