By: Stephanie Petrashko
On July 1, 2014, Canada’s Anti-Spam Legislation (CASL) is coming into force, changing the way that commercial messaging is regulated in Canada. The federal government introduced this law to protect Canadians from unsolicited commercial electronic messages (spam) by discouraging the use of electronic means to carry out commercial activities.
Once the new law is in effect, it will generally prohibit the sending of commercial electronic messages – including e-mails, text messages and social media messages – without the recipient's consent. If you send electronic messages to promote your business, such as e-newsletters, a list of your services or links to your website, there are steps that your business will need to take to comply with the new regulations.
What is a commercial electronic message (CEM)?
In summary, CASL defines “commercial electronic message” as one that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.
CEMs include those that offer or promote products, services, suppliers, sponsors or business opportunities. CEMs may also direct the recipient to a webpage, phone number or location that is considered to have a commercial purpose.
Here are some examples of CEMs:
- An e-newsletter that includes a link to the sale of tickets.
- A mass e-mail providing general information about your organization.
- An e-mail that requests consent to send a CEM is, in itself, a CEM. Therefore, if you wish to send CEMs to recipients, you will need to obtain their consent before July 1st.
How can I obtain consent?
Consent can be either express or implied.
Express consent means that someone has actively given you permission to send him/her a CEM. For example, a prospect signed up to receive your weekly e-newsletter.
To obtain express consent, you must include:
- The reason for requesting consent
- The name of the party seeking consent
- Full contact information of the party seeking consent
- A message stating that the recipient can unsubscribe
Express consent must be obtained through an opt-in mechanism, meaning that end-users have to take an affirmative action to provide their consent. Therefore, you cannot use a pre-checked box to obtain consent. However, having someone check off a box on a webpage is acceptable.
You can obtain consent electronically, orally or with written permission. However, under CASL, you must also be able to prove that you have consent.
Express consent does not expire, unless the recipient withdraws his/her consent.
Implied consent means that it would be reasonable to conclude that you have permission to send a recipient a CEM based on prior relationships. Implied consent may include donations or volunteer work by the recipient. However, in these cases, the messages must be sent from a registered charity, and the messages must be sent within two years of the donation or the volunteer work being done.
Those who do not have consent by July 1st will need to get it through other means (telephone, fax or mail).
How do I comply with the regulations of the new law?
To continue sending commercial messages after July 1st, you will need to comply with the following:
- Have the recipient’s consent. You must have express or implied consent to send a message.
- Provide identification information. You must clearly identify yourself and anyone else on whose behalf the message is sent.
- Have an unsubscribe mechanism. Each message you send must include a way for recipients to unsubscribe from receiving your messages in the future.
Who is excluded from the new regulations?
There are some exemptions to CASL’s consent requirements. Here are a few of the key ones:
- Business-to-business communications. Messages sent within a business, and those sent between businesses that have an existing business relationship, are exempt from the regulations. Under CASL, “existing business relationship” is generally defined as one in which the recipient has made a purchase within the past two years, or an enquiry within the past six months.
- Messages sent in response to a request for information. Messages are exempt if they are sent in response to requests, enquiries or complaints.
- Fundraising messages from charities. Fundraising e-mails from registered non-profit organizations are exempt, as long as the primary purpose of the CEMs is to raise funds for the charity.
- Recipients who have conspicuously published their e-mail address (e.g., on a website), or disclosed their e-mail address directly to the sender. In both cases, recipients must not have stated that they do not wish to receive unsolicited messages, and the messages must be relevant to the recipient’s business or role.
- Third-party referrals. To qualify for the exemption:
- The sender must provide in the message the name of the person who made the referral.
- The referrer must have an existing personal or business relationship with both the sender and the message recipient.
To read the full text of the law, please click here.
For additional information, please visit http://fightspam.gc.ca/eic/site/030.nsf/eng/home.