Canada’s Anti-Spam Legislation – Part II

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What does CASL mean to you, and how do you comply?

In my blog post of January 29, 2013 I provided initial information on CASL. This is a continuation and builds on the information provided there so I recommend that you read that entry first, before reading this blogpost.

To comply with CASL, each person, business, organization, charity and the like, will have to determine whether the emails that you send are what the legislation defines as “commercial electronic messages” or CEMs. If so, you have to implement the consent and unsubscribe mechanisms found in CASL, to be outlined below and in subsequent posts.

A. Sending and Receiving Electronic Messages

A major purpose of CASL is to govern the sending of “commercial electronic messages” or CEMs. The law prohibits a person (including individuals, businesses and other organizations) from sending a commercial electronic message unless (a) the recipient has consented to receiving it, whether by express or implied consent, and (b) the message complies with the identification and unsubscribe mechanism requirements outlined in CASL and the regulations.

The term “commercial electronic message” is defined very broadly and includes any electronic message “that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity”.

The term “commercial activity” includes any transaction, act or conduct that is of “commercial character”, whether or not in the expectation of profit.

What this means is that all electronic messages sent, that involve commercial activities or include as part of the content or signature any link to a “commercial activity” are included in the definition and within the ambit of CASL.  How this will be interrpreted is a matter of debate, however technically, any and all business emails where the standard signature line includes a link to the website homepage could be CEMs and compliance with CASL required, unless exempted by the statute (as outlined below). Emails sent within and between employees of for-profit businesses, charities or not-for-profit organizations and other organizations, where the employee signature line includes a link to the business homepage may also be caught by the new law.

Electronic messages that request consent may be CEMs, so emails seeking consent for a subsequent “commercial electronic message” will be subject to CASL’s compliance requirements.

CASL applies only where a CEM is sent to an electronic address: this includes e-mail, SMS and IM messages. At this time it appears that CASL would not apply to electronic messages sent to Twitter or RSS feeds or messages that are received through general web browsing or posted on a Facebook wall or LinkedIn wall, for example, because these messages are not sent to an electronic address. As far as I know (as of mid-February, but certainly as of January, 2013), the CRTC had not yet decided whether an IP address such as an IP address associated with a set top box would be an electronic address.

Unless exempted, as will be outlined in a subsequent post, CEMs may only be sent where: (a) the recipient has consented to receiving it, whether by express or implied consent, and (b) the message complies with the identification and unsubscribe mechanism requirements found in CASL.

In my next post I will describe what constitutes consent for purposes of compliance with CASL.

Stay tuned!



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