Canada’s Anti-Spam Legislation – Part V

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In my January 29th post on Canada’s new Anti-Spam Legislation (CASL), I wrote about the introduction of new requirements for sending certain types of emails and other electronic communications, and new regulatory requirements for installing software, including updates and upgrades.

In the February 14th post I provided a commentary on what electronic messages are governed by the statute. Unless exempted (as discussed below) commercial electronic messages (known as 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.

The March 3rd post outlines what qualifies as “express consent” under CASL, for the purpose of sending CEMs and for installing software.

In Part IV, posted March 20, 2013 I discussed “implied consent”, and commented on the unsubscribe mechanism requirements.

In this post I will discuss the exceptions that are available for certain CEMs.

Exceptions to the CASL requirements for CEMs

The Industry Canada Regulations state that the following CEMs are excepted from the consent, identification and unsubscribe mechanisms of CASL:

1. CEMs sent to individuals in a “family relationship”. The term “family relationship” is limited to members of a family who descend from a common grandparent, which only includes aunts, uncles, cousins, nieces, and nephews.

This could be problematic for many extended families. CEMs sent to extended cousins for example, would not be exempt unless they are within the “personal relationship” exemption below.

2. CEMs sent to persons in a “personal relationship” are exempt. The proposed Regulations define “personal relationship” as a relationship between two people who have had voluntary communications where it would be reasonable to conclude that the relationship is personal, unless the recipient has asked to no longer receive commercial electronic messages. Determining whether the relationship is personal will be based on a non-exhaustive list of factors such as the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated and if the parties have met in person.

This may result in personal messages sent to acquaintances, colleagues, neighbors, or others from a business email address, where the signature line includes a hyperlink to the sender’s business home page (as many signatures do) being considered CEMs and subject to the identification and consent requirements.

3. CEMs sent within a business, which concern the business or affairs of that organization.

As an example, any electronic communications that include a hyperlink to the business homepage, sent within an organization for a charity drive, would not be exempt.

4. CEMs sent between organizations that are in an existing business relationship and the messages are relevant to or concern the business, role, function or duties of the organizations.

5. Third-party referral. Any person from an existing family, personal, business or non-business relationship who refers a prospective client to a third party would be governed by this exception. The person making the referral has to be in relationship with each of the sender and the recipient. The Industry Canada Regulations permit the third party to send one (1) electronic message seeking consent, and must comply with the identification and unsubscribe requirements of CASL.

This exemption will specifically impact small businesses that build their business through relationships, referrals and contacts.

6. There are also exemptions for CEMs that are:

(a) sent in response to complaints and requests and messages sent due to a legal obligation or to enforce a pending or existing legal right; or

(b) relate to a foreign business (located outside Canada) and accessed while the recipient is visiting Canada, when the sender could not reasonably have been expected to know its messages would be accessed in Canada. Multi-national corporations whose employees travel to Canada during the course of their business and access emails while doing business in Canada may be subject to CASL.

CEMS where No Consent is Required

Consent is not required for the following categories of messages when those messages solely:

1. Provide a quote or estimate for the supply of products, goods or services that the recipient had requested;

2. Facilitate, complete or confirm a commercial transaction that the recipient had previously agreed to;

3. Provide warranty, recall, safety or security information about a product, good or service that the recipient uses, has used or has purchased;

4. Provide notice of factual information about the, or the ongoing use or purchase of a product, good or service offered under, subscription, membership, account, loan or “similar relationship”;

5. Provide employment or benefits information to employees or plan participants; and/or

6. Deliver a product, good or service (including updates/upgrades) that the recipient is entitled to receive under the terms of an ongoing transaction.

This list has already raised problems of interpretation, and according to the CRTC, the exemptions apply to messages that are service messages only. If a message contains promotional or other information that would make it a CEM, such as a link to the webpage of the sender, the identification, consent and unsubscribe provisions apply.

In my next (and last) post in this series, I will comment on the requirements related to installation of computer programs, including updates, as well as some transitional items and penalties for non-compliance.



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