What you need to know about Canada’s anti-spam legislation

The Canada Anti Spam Law “CASL”, which comes into effect on July 1, 2014applies to all businesses in Canada.  This legislation regulates the sending of Commercial Electronic Messages “CEMs”, which includes all forms of electronic communication such as e-mails, texts and certain messages sent via social networking if they encourage participation in a commercial activity. This  includes advertisements, offers or promotions relating to the purchase or sale of goods or services, as well as information about a business or investment opportunities.

Please take a moment to read through the information below.  It will help you understand how this new legislation impacts your business, and what you need to do to prepare in advance of July 1st and comply going forward.

Steps to Prepare for July 1, 2014:

  1.  Review and organize your contacts,  as per the guidelines summarized below, into groups who are exempt from consent requirements, those who fall under implied consent and those who require you to request consent.
  2. For those requiring consent, obtain consent from each, clearly stating your purpose for requesting consent. Here is a sample letter to request consent.
  3. Develop an Internet form to capture email addresses and other information required from those who agree to receive your communications.
  4. Ensure all of your communications include an “unsubscribe” option.
  5. Ensure that you provide your contact information (mailing address, telephone, email address or web address) on all communications.

Summary of Consent and Content Requirements

The follow is a summary of CASL’s consent and content requirements for CEMs.

Exemptions

The following CEMs are exempt from requiring consent:

  • Messages sent within a business – i.e. franchisor to franchisee or broker to agent
  • Messages between businesses that have an on-going business relationship and concern the affairs of the organization or the person’s role
  • Messages sent to someone the sender has a family or personal relationship with
  • Messages sent among employees of an organization
  • Messages that are communications between employees of two organizations that have a relationship, i.e. between two brokerages that are cooperating on a sale
  •  Messages sent in response to an inquiry or application
  •  Messages sent to enforce a legal right

Implied Consent

Implied consent can be relied upon when:

  • The sender and recipient have been in a business or non-business relationship in the two years preceding the message
  • The recipient has “conspicuously published” his or her electronic address without restriction and the message relates to the person’s job or business
  • The recipient disclosed his/her electronic address to the sender without indicating a wish not to receive unsolicited CEMs
  • The CEM is relevant to the person’s business, role, functions or duties in a business or official capacity

If consent cannot be implied, then express consent is required.
 
Express Consent
 
Express consent means that the recipient has been asked for consent and has responded affirmatively.  Requests for consent, and most CEMs, must meet prescribed form, content and unsubscribe requirements as follows:

  • Include the identity and contact information of the sender
  • Include a clear description of the purpose for which consent is being sought
  • Contact information provided in the CEM must remain valid for 60 days from date sent
  • Requests to unsubscribe must be acted upon within 10 days of receipt
  • Express consents (verbal or written) must be “opt-in”
  • Express consents received need to be tracked in order to prove that the sender has obtained the required consent to send a recipient a CEM

Email Lists

Email lists need to be managed carefully for the “expiry” of implied consent, and the granting or withdrawal of express consents.

For further information:

For further information, including specific examples for sales representatives, please review the following CREA documents:

For more information, go to fightspam.gc.ca

The information provided is not intended to constitute legal advice nor be a complete statement of the law.  You are encouraged to contact your legal adviser should you have any specific questions.

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