CASL Redefines Bulk Messaging Rules In Canada

On July 1, 2014, this country gave a birthday present to itself: Canada Anti-Spam Legislation. While this might be a welcome gift for some, CASL will cause headaches for many organizations, even those which don’t normally send bulk email.

CASL might be the most onerous electronic messaging legislation in the world. There are too many features to include in one article but a few concepts demonstrate why this law is so significant.

Unlike many other countries’ anti-spam laws, CASL is a consent-based system which rests on an opt-in foundation. The United States chose to fight spam with an opt-out system. In that model, senders are free to keep forwarding messages until the recipient tells them not to.

Canada, like many European nations, chose opt-in. This means electronic messages cannot be sent until the potential recipient gives permission prior to the messaging. The consent can be written or oral but it must be documented. Simply saying that someone gave verbal permission may not be enough to avoid the clutches of the Act.

This opt-in model is baked into almost every aspect of the legislation and it (at least potentially) will be strictly applied. Here’s an example: if a form is presented online for someone to signify consent, the form cannot even pre-populate the form with a check mark. The potential recipient must perform some action, even if it is just clicking a box, to confirm their consent.

Unless you avoid email altogether you have already seen the impact of these rules. Many in Canada who want to send you electronic messages after July 1 and comply with CASL have sent you an email or other message asking for your consent. The mechanics vary but if you did not reply with a positive consent they cannot continue to send you messages. That is, unless they fit into an exemption; there will be more on that later.

What about non-Canadian senders? The government claims the legislation lets them cooperate with foreign governments to share information and enforce similar laws. I have my doubts about this. I don’t expect the Nigerian prince emails to slow down because of CASL.

A second key CASL point is not to think of it in terms of bulk spam. Technically, the law applies to “commercial electronic messages”, or CEM’s. This starts with a very wide net. Any message by telecommunication, text, sound, voice or image message, if it is reasonable to think one purpose is to encourage participating in a commercial activity, is caught. Almost anything sent by a business will fit into this definition.

This does not mean “messages”. A single communication can be a CEM. Just because you do not do email blasts or other high volume campaigns don’t think you can ignore CASL. It is possible that a single “cold call” email to a potential customer can be a CEM and prohibited by CASL.

That gets peoples’ attention. Their next thought is how in the world they can conduct electronic marketing, or even business, with such legislation. That’s where the third aspect of CASL comes in, the exemptions. There are certain things which CASL allows, starting with:

  • CEM’s can be sent to family or friends
  • It is OK to inquire about the recipient’s commercial activity (say, asking if their product will suit your purpose)
  • Likewise, there is no problem with employees of an organization communicating with employees in another organization about their respective commercial activities or where there is an existing business relationship
  • Legal notices are usually OK
  • Registered charities and political fundraising activities are allowed

The normal business activities you would expect are largely exempted but you still need to check to make sure.

Another key change is that all messages sent, whether under an exemption or with consent, must comply with CASL’s content requirements. The sender’s contact information must be clearly stated (a mailing address and a telephone number, email address or website address) and there must be an unsubscribe option.

The final escape clause rests on some transition provisions. For example, if you have provided goods or services to a customer you have implied consent to message them for 2 years. If they only asked about your services, you have a 6 month window. There are a few of these “business relationship” exceptions which allow commerce to continue. Again, be absolutely sure you are within the exceptions for your activities.

If you ignore CASL, the penalties are steep: businesses face fines of up to $10 million and individuals a million dollars. Officers and directors who assent or acquiesce to offences can be personally liable. Plus recipients who suffer harm can bring private civil suits for damages. Class action law suits could be the biggest threat.

CASL may be a big deal or it may end up on the heap of laws which sound great but are subject to little enforcement. Until we know, the risk of being a test case is something to avoid. Talk to your advisors immediately to ensure you are onside.

This article originally appeared in Saskatchewan Business magazine and is reproduced with their kind permission