By: Philip C. Schroeder, Esq.
On July 1, 2014, the Canada Anti-Spam Legislation of 2014 (“CASL”) came into effect. If you are sending marketing e-mails or other electronic messages to people in Canada, you need to be aware of the new rules to avoid potentially substantial penalties.
Under CASL, it is illegal to send to or from a Canadian computer a “commercial electronic message” unless the recipient has consented to receiving the message. CASL also requires that all commercial electronic messages include an unsubscribe mechanism.
What Communications Are Affected?
A commercial electronic message is any message sent in electronic format to an electronic address that encourages the recipient to take part in some commercial activity, including the promotion of products or services. E-mail is clearly covered by CASL, and so is certain social media messaging. For example, a Facebook wall post would not be covered by CASL, but a message sent directly to social media users using Facebook messaging or LinkedIn messaging could be deemed a commercial electronic message.
How Do You Obtain the Consent of the Recipient?
A recipient’s consent can be either “express” or “implied”. A request for express consent must include:
- The sender’s contact information;
- The purpose of the consent; and
- The fact that the recipient can revoke consent at any time.
Express consent requires that the recipient actively “opt-in”. A message informing the recipient that they will receive commercial electronic messages unless they check or uncheck a box or click a button to opt-out is NOT sufficient. Further, a “commercial electronic message” cannot be used to obtain express consent, so a separate communication must be used to obtain consent prior to sending a commercial electronic message.
Express consent that was obtained prior to the effective date of CASL will remain as valid consent until withdrawn by the person consenting.
Consent can be implied in the following circumstances:
- The recipient has an “existing business relationship” with the sender, which includes circumstances in which the recipient has, in the two years prior to the commercial electronic message, purchased a product or service from the sender or accepted a business, investment or gaming opportunity from the sender;
- If the sender is a registered charity or political party or candidate, the recipient has an “existing non-business relationship” with the sender, which includes circumstances in which the recipient has made a donation or gift to the sender or performed volunteer work for the sender in the two years prior to the commercial electronic message;
- If the sender is a club, association or volunteer organization, the recipient has been a member of such organization in the two years prior to the commercial electronic message; and
- The recipient’s electronic address was sent by the recipient to the sender or conspicuously published by the recipient in each case without any restriction on the receipt of commercial electronic messages IF the commercial electronic message is relevant to the recipient’s business, role, function or duties in a business or official capacity.
Identification of Sender and Unsubscribe Procedure
In addition to obtaining consent, commercial electronic messages must contain (a) the identity of the sender and anyone on whose behalf the message is being sent, (b) the sender’s contact information and (c) a free, simple, quick and easy mechanism that allows the recipient to unsubscribe from future commercial electronic messages. The sender must give effect to an unsubscribe request within ten business days of the request being sent.
Penalties for violations of CASL can be as high as $1 million for individuals and $10 million for businesses per violation. Further, individual directors, officers and agents of a company may be personally liable for violations they have authorized or in which they have participated.
If you are currently sending marketing or promotional materials to or from Canadian computers, you should review your contact data base to determine if you have either implied or express consent from the recipients in your data base. If not, steps should be taken to obtain consent before further commercial electronic messages are sent. Also, all commercial electronic messages should be reviewed to confirm they include the required sender identification and method for unsubscribing.
Moving forward, businesses should consider adopting compliance policies and procedures to ensure that data is collected and used in a manner that complies with CASL and other anti-spam laws and regulations.