Why does Canada have Anti-Spam Legislation?
On 1 July 2014 The Canadian Anti-Spam Law (CASL) was introduced to eliminate unwanted spam communications. It provides that senders of “commercial electronic messages” (CEMs), such as email, text and other electronic communication methods soliciting business or providing marketing information, must have the consent of the recipient.
Transitional arrangements ending
For three years, transitional CASL arrangements have been in place but with these ending on July 1, 2017, businesses and other organizations communicating by way of CEMs will no longer be able to rely on the previously permitted “implied consent” provisions. The transitional consent provisions allowed businesses and other organizations to show that they had a recipient’s consent to send them CEMs either by obtaining express consent or by establishing an implied consent if:
- The sender already had an existing business relationship or non-business relationship with the recipient prior to July 1, 2014; and
- As part of that existing relationship, the sender and recipient had previously communicated by way of CEMs.
What happens now?
From July 1, 2017, the transitional implied consents expire so businesses must take steps to obtain an additional express consent or ensure that a recipient’s implied consent is renewed. In addition, keeping accurate and up-to-date records (including information such as the electronic address, the date and the method that consent was received), establishing corporate compliance programmes and other steps may be necessary to ensure on-going compliance.
What are the penalties for violations?
Failure to obtain new express consents or renewals of previous implied consents will open up the risk of substantial government fines. CASL sets out the factors to be considered in determining the amount of a fine with the maximum penalty, per violation, set at $1 million for an individual, and $10 million for a business.
Many businesses and other organizations have already spent valuable time, effort and resources to comply with CASL, but the now greater risks and potential costs of non-compliance mean that all businesses and other organizations should review their marketing communications and efforts with these legislative developments in mind.
If you would like more information on CASL and related compliance issues, please contact one of the lawyers in our Business Law group.