On July 1, 2014 Canada’s Anti-Spam Legislation (“CASL”) comes into force and establishes strict guidelines that must be followed when sending Commercial Electronic Messages (“CEMs”). All CEMs sent from within Canada will require express consent from the receiver unless they have implied consent or fall within an exception.
It is important that all businesses are aware of the reach of CASL. CEMs are messages sent for commercial reasons and contain commercial content, whether or not there is an expectation of profit. This includes messages sent through email, instant messaging, social networking or text messages.
How to obtain Express Consent?
In order to obtain Express Consent strict guidelines must be followed by the sender. The consent must not be requested through “pre-selected” check boxes within an email, the recipient must have actively consented to receiving CEMs from the sender’s organization. In addition a request for express consent is considered a CEM, so unless it is sent out prior to July 1, 2014 it can only be sent to those to whom the sender has implied consent to send CEMs to. All CEMs must also contain an unsubscribe mechanism along with the contact details of the sender and a statement explaining that consent may be withdrawn. Please note that express consent may also be obtained orally, but it must be independently verified by recorded in some way in order for it to be valid.
In what situations is there Implied Consent?
- Existing business relationships: consent is implied for all existing business relationships that were entered into prior to July 1, 2014, but this exemption only applies for 36 months from July 1, 2014. Following such time, express consent must be obtained in order to continue sending CEMs. Implied consent for all business relationships entered into after July 1, 2014 will be implied for a period of two years if the recipient has bought a product, good or service, entered into a contract or been involved in an investment with the sender.
- Existing Non-Business Relationships: consent is implied for all existing non-business relationships, this includes relationships wherein someone has made a donation or a gift to the sender of the CEM, or they are a member of the sender’s organization.
- Published Address: consent is implied if the address of the recipient is conspicuously published and the CEM is relevant to their business duties. It is not yet clear under CASL as to if the giving of a business card would fall within this category.
What other exemptions may apply when sending CEMs?
- Internal communication between employees, if the CEM concerns the activities of the organization.
- CEMs sent to persons at another organization if the CEM concerns the activities of that organization.
- CEMS sent in response to a request, enquiry, complain or solicitation.
- CEMs sent by a Registered Charity for fundraising purposes.
- CEMs sent by political parties and candidates, if the primary purpose is to solicit a contribution.
- Messages sent to an individual whom the sender has a personal or family relationship, please note that the regulations state that this must be limited to close relationships.
This exemption will not apply to social media contacts unless there is an underlying close relationship.
What Penalties apply for violating CASL?
Failure to comply with CASL may result in administrative monetary penalties of up to $1 million for an individual and up to $10 million for other entities such as corporations. Directors, officers, agents and mandatories of an organisation may be liable if they authorized or participated in the violation of CASL.
It is therefore important for all organizations to ensure compliance with CASL as soon as possible.
What Actions should be taken?
The following actions should be taken as soon as possible and ideally prior to July 1, 2014:
- Ensure that all employees are aware of CASL and the compliance requirements.
- Amend the format of any CEMs to include contact information, an unsubscribe mechanism.
- Send out a CEM (preferably prior to July 1, 2014) (Note that pre-checked consent boxes cannot be used, there must be a clear “opting in” to receive CEMs).
- Ensure that internal communication lists are updated when express consent is obtained and that anyone who withdraws their consent, or does not provide consent is immediately removed.
Please note that CASL will also cover the installation of computer programs and the alteration of transmission data without express consent, these provisions will come into force on January 15, 2015 and we intend to provide further updates on these in due course. The sections dealing with the ability to conduct private rights of action will come into force on July 1, 2017.
We look forward to assisting our clients with compliance issues surrounding CASL and encourage any inquiries that you may have.