Marketing Strategy and Planning, B2B Marketing

Introduction to CASL: Canada’s Anti-Spam Legislation

Lisa Shepherd

May 1, 2014 6:00:27 AM

As you may be aware, Canada’s anti-spam legislation (known as “CASL”) will come into effect on July 1, 2014; it is designed to regulate how commercial electronic messages (“CEMs”) are sent and received in the Canadian market place. Going beyond simply regulating “spam” that all email users get, this legislation will facilitate the creation of a consent-based system that will apply to almost all electronic messages sent for commercial purposes. Whereas the US CAN-SPAM Act relies on opt-out consent (i.e., a functioning unsubscribe mechanism), CASL requires explicit opt-in consent.

While the details of this new law may seem overwhelming, we’ve outlined the key aspects, plus resources at the end, that you should be aware of and plan for.

CASL applies to everyone—individuals, incorporated and unincorporated businesses, not-for-profit organizations, etc.—anyone sending electronic messages for commercial purposes.

Under CASL, electronic messages can include emails, SMS text messages, instant messages and messages sent through social networks.

CASL

CASL defines a CEM as a message that encourages participation in a commercial activity. This includes advertisements and information about promotions, offers, business opportunities, events, etc.

Consent

Businesses will be required to both obtain and prove expressed opt-in consent or implied consent to send CEMs (pre-toggled or pre-checked in boxes will no longer be acceptable). Express consent means that the receiver has actively given your business permission to send him/her a CEM. Implied consent means it would be reasonable to conclude your business has the receiver’s permission to send him/her a CEM based on prior relationships. Implied consent could also apply to anyone who has conspicuously published his/her email address, say on a website. Under CASL, consent is required before sending a CEM. However, businesses must be aware that an electronic message being sent to obtain said consent is also considered a CEM.

This same opt-in consent standard will also apply to the installation of computer programs, software, or apps on computers, smart phones, and other such devices.

Identification

All CEMs will clearly and prominently need to identify the sender, supply the sender’s contact information, and provide an unsubscribe mechanism, unless fully exempted from the Act; those exemptions can be viewed here.

Penalties

The above regulations will require most organizations to make changes in their current CEM marketing strategies, or risk serious penalties, including criminal charges, civil charges, personal liability for company officers and directors, and monetary penalties of up to $10 million.

CASL will be implemented in three stages:

The anti-spam provisions will take effect on July 1, 2014
The provisions relating to the unsolicited installation of computer programs, software, and apps will come into effect on January 15, 2015
The private right of action will be enforceable as of July 1, 2017

There are, however, provisions built into the legislation that will allow businesses the time to implement the necessary changes. Businesses have a three year grace period after July 1, 2014 to verify and confirm consent to send CEMs, but can still only communicate with recipients with whom they have an existing business relationship. In addition, all express consents received before CASL comes into effect will be recognized as CASL compliant.

Given the imminent deadline, it is essential for businesses to take action and develop a compliance strategy; below are additional resources to help your business be CASL ready.