Canadian Anti-Spam Legislation
Many of our clients engage in sending newsletters by email to their audiences. If you use such communication methods, you will want to pay attention to Canada’s new Anti-Spam Legislation (CASL) that comes into force July 1, 2014.
The aim of CASL is to put an end to unsolicited messages that flood recipients’ inboxes on a daily basis. However, it is not just spam or bulk messages that will be affected; the legislation applies to all electronic communications. Understanding this new legislation important for anyone who uses electronic communication to conduct business, especially since the penalties for failing to meet the standards in this legislation are quite steep. For corporations, the penalty can reach up to $10MM and for individuals $1MM should you fall foul of the requirements.
As mentioned above, this legislation applies to everyone who sends commercial electronic messages (CEMs). Whether you are an individual or a corporation sending CEMs, this legislation will apply to you.
CEMs include emails, text messages, instant messages and messages through social media sent for a commercial purpose. CASL also applies to messages that install computer programs on a computer without consent. In order to be considered a commercial purpose, the message must have been sent with the intention to encourage participation in a commercial activity. In other words the message must have been sent for the purposes of advertising, promotions, or business offers. (Note: it is not yet clear if repeatedly posting updates on Twitter and Facebook for new blog entries is covered by CASL).
CEMs can only be sent with the prior consent of the recipient. The sender must request permission and consent from the recipient (opt-in) before sending any CEM. Consent can be given through a positive action by the recipient through either oral or written means.
The request for consent must be clearly stated in a message to the recipient and cannot be hidden away in fine print. The identity and contact information of the sender must be provided to the recipient. If the message is being sent on behalf of a third party, their contact information must also be provided. There must also be an option available for the recipient to opt out of receiving CEMs from the sender.
While express consent is preferable, consent can also be impliedly received if there is an existing business or non-business relationship between the two parties. However, implied consent will only apply in limited circumstances. One example of an existing relationship would be where there has been a purchase or lease of a product between the parties within the immediate past two-year period. Another example would be when the recipient has made an inquiry of the commercial activities of the sending party within the immediate past 6 months. It must be clear that there was an established relationship between the two parties.
There are a number of statutory exceptions to the above consent obligation. You will not need to obtain prior consent if the messages are between friends or family, responding to an inquiry related to your commercial activity, providing a quote that was requested, messages between employees, franchisees of the same organization, messages sent by political parties and charities, and messages which are sent to provide notice of a legal right or obligation. The onus is on the sender to demonstrate that they fall under one of the statutory exceptions.
To avoid contravening the legislation, it is prudent to take pro-active steps to review how you send CEMs to clients and potential clients before the legislation comes into force. One of the first steps should be to ensuring that before sending out any further CEMs, you obtain the consent of your clients or business partners.
If you need more information about how to implement CASL compliant practices, please contact us at any time.
You must be logged in to post a comment.