Canada’s Anti-Spam Legislation (CASL) comes into effect in only a few weeks on Canada Day. Among other IT related activities, the legislation prohibits sending commercial electronic messages (CEMs) to an electronic address without the recipient’s prior consent.
This post is intended only to contribute to awareness of the new legislation. Check out the links at the bottom of this page for in-depth information that will help you address your organization’s electronic marketing practices.
Many businesses and other organizations have followed email best practices that met the United States’ CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing Act) laws. There are important differences to be aware of to ensure compliance.
|Applies to messages sent or received in Canada||Does not apply to messages sent or received outside of the US|
|Applies to commercial messages sent to “electronic addresses” which include:
||Applies only to email messages|
|Requires recipients receive only the electronic messages they have opted in to receive (and also have the ability to easily opt out)||Requires only that recipients have the right and ability to opt out of future email messages|
|Fines up to $10 million per violation||Fines up to $16,000 per violation|
Commercial electronic message
An email or other electronic message is classified as commercial when at least one of its purposes is to encourage the recipient to take part in a commercial activity. For example:
- Offering to buy or sell a product or service
- Advertising or promoting a product or service
- Promoting a person who buys or sells products or services
The electronic message must include all of the following:
- Identify your organization as the sender
- Include your mailing address and one other means of contacting you
- Clear and easy unsubscribe mechanism
Obtaining recipients’ consent
There are two types of consent:
- Express consent
Either written (on paper or electronically) or verbal, the recipient has given their direct consent.
- Implied consent
The recipient has provided their electronic address directly.
The message is relevant to the recipient’s role or business capacity.
The recipient has never requested not to receive messages.Consent could also implied if there is an existing business or non-business relationship with the person. In the event of a complaint, compliance would be determined on a case-by-case basis.
What about business cards?
Receiving someone’s business card could be interpreted as implied consent to send a CEM. But to minimize the potential for complaints, it would be wise to obtain express consent when the person gives you the card; and making a detailed note of the consent for your records.
In the event that a spam complaint is made, the onus will be on the organization to prove that consent was given. Maintaining detailed records will be imperative to protect organizations against spam complaints. Information to record includes:
- Was consent received in writing or verbally,
- When consent was received,
- Why it was obtained, and
- How it was obtained, (e.g. where, such as a specific tradeshow booth or networking event).
In-depth information on CASL
- CRTC Compliance and Enforcement Information Bulletin 2012-548
- Overview of CASL provided by Government of Canada
- Davis LLP legal overview
- Full text of the legislation
- “New anti-spam law ‘a big deal’ for small businesses,” Globe and Mail, March 20, 2014
IMPORTANT NOTE: Information on this website is not legal advice and should not be taken as such. Please consult your attorney or other professional legal services provider regarding your organization’s email marketing policies and procedures to ensure compliance with CASL.