What You Need to Know

The Basics

Canada’s Anti-Spam Legislation (CASL) generally prohibits:

  • sending commercial electronic messages (CEMs) to an electronic address without consent;
  • altering transmission data in an electronic message so that the message is delivered to a destination other than or in addition to that specified by the sender;
  • installing a computer program on a person's computer system without consent; and
  • causing a program on a person's computer system to send an electronic message.

Aiding, inducing, procuring or causing to be procured any of these activities is also an offence under CASL.

The contents of this site will focus primarily on the first prohibition, namely the anti-spam provisions under CASL.

The Details

Sending Commercial Electronic Messages

CASL generally prohibits a person from sending a commercial electronic message (CEM) to an electronic address without the consent of the recipient. CASL also prohibits sending a CEM where certain required formalities are not included in the message, including an unsubscribe mechanism.

CASL and its regulations provide for numerous exceptions to the foregoing, including exceptions to consent in certain scenarios, and general exceptions based on the content of the CEM or the relationship of the sender and receiver. Senders may also be relieved of the requirement to meet the formalities where compliance is impractical.

Consent can be either express or implied.

It should be noted that an electronic message seeking consent may constitute a CEM for the purposes of CASL, and may not be sent without the recipient’s consent once this legislation is in force.

Complying with the Anti-Spam Law

Given the significant impact of Canada's Anti-Spam Law (CASL) and the scope of its liability, it would be prudent for businesses to be proactive in their approach to compliance with this legislation. To that end, the following strategies should be considered:

  • Review all existing communication practices internally, as well as with applicable external service providers.
  • Assess whether your communications are commercial electronic messages (CEMs).
  • Assess whether your CEMs are subject to CASL.
  • Determine which entity in your organization should "own" the consents.
  • Address the informational requirements where consent is collected by your organization for itself or for other entities.
  • Assess each of your business or non-business relationships to ascertain if implied consent is available for CEMs to be sent.
  • Assess and diarize the availability of implied consent to whom you may have an “existing business relationship” or a “non-business relationship” during the three-year transition period.
  • Take steps to collect necessary express consents. This cannot be done after July 1, 2014 using CEMs.
  • Identify such communications where consents are not required but the informational requirements and formalities are still required.
  • Develop a database of your contacts that:
    • enables all consents to be tracked, retained and retrievable; and
    • allows any waiver or variation of such consent to be readily tracked and implemented.
  • Maintain policies to ensure that CEMs are not sent where there is no consent or where implied consent has expired.
  • Create and maintain an easy-to-use and effective unsubscribe mechanism for the CEMs.
  • Create templates for CEMs which satisfy the informational requirements and formalities, as applicable.
  • Develop and implement a CASL-compliance policy to address applicable provisions in CASL.
  • Educate all relevant employees and service providers about CASL, and the organization's CASL-compliance strategies.
  • Ensure that all records of your compliance procedures and policies are maintained (as such documentation may support a due diligence defense at a later point in time).
  • Review your CASL compliance activities from time to time and adapt as needed.
  • Review developments in the law concerning CASL from time to time and adapt your compliance policies as necessary.

Key Contacts

Martin P.J. Kratz QC, FCIPS
Martin P.J. Kratz QC, FCIPS
Partner, Trademark Agent
Duncan C. Card
Duncan C. Card
Bermuda Managing Principal, Co-Head Technology, Outsourcing and Procurement

Your Anti-Spam Team

Duncan C. Card
Duncan C. Card
Bermuda Managing Principal, Co-Head Technology, Outsourcing and Procurement
Michael A. Eizenga L.S.M.
Michael A. Eizenga L.S.M.
Partner, Co-Chair of Class Actions
J. Sébastien A. Gittens
J. Sébastien A. Gittens
Associate and Trademark Agent
Martin P.J. Kratz QC, FCIPS
Martin P.J. Kratz QC, FCIPS
Partner, Trademark Agent

Useful Terminology

CASL means Canada’s Anti-Spam Legislation or technically An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23.

Commercial electronic message (or CEM) is generally defined to mean an electronic message that, having regard to its content, encourages participation in a commercial activity, namely any transaction, act or conduct or any regular course of conduct that is of a commercial character, regardless of whether there is an expectation of profit. CEMs include an electronic message that:

  • offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
  • offers to provide a business, investment or gaming opportunity; or
  • advertises or promotes any of the foregoing.

Electronic address is generally defined to mean an address used in connection with the transmission of an electronic message to an e-mail account, instant messaging (e.g., SMS) account, or any other similar account.

 

Electronic message is generally defined to mean a message sent by any means of telecommunication, including a text, sound, voice or image message.

Express consent can either be written or oral consent. Any request to obtain consent from a person must set out clearly and simply the purpose or purposes for which the consent is being sought together with all of the formalities prescribed in CASL.

Implied consent means the consent that may be implied by virtue of any number of different scenarios stated in CASL, including the sender and recipient having an “existing business relationship” or an “existing non-business relationship”.

Formalities means the content that must be included in a CEM in order to comply with CASL, including informational content and an Unsubscribe mechanism.

Unsubscribe Mechanism is a method that allows a recipient of a CEM to indicate the wish to no longer receive any further CEMs from the sender.

Getting Help

If you require any assistance in doing so, or wish to learn more about how CASL may apply to you, please contact a lawyer at Bennett Jones LLP.

Details on our CASL initiative may be found on our Anti-Spam Law practice page.

Getting Ready

With the legislation in force since July 1, 2014, registered charities should have implemented their compliance plans.

Steps that such organizations should pursue to begin to implement their compliance strategies, if they haven't done so already, are set out at Complying with the Anti-Spam Law.

The Fine Print

The foregoing is provided to you as general information only, and is not intended as a substitute for specific legal advice or counsel. Please contact Bennett Jones LLP to obtain specific legal advice before taking or refraining from taking any action.