Canada’s anti-spam legislation takes effect July 1, 2014.

by Sarah Pack

On July 1, 2014, Canada’s Anti-Spam Legislation (CASL) will go into effect. CASL requires individuals, for-profit companies, and nonprofit organizations to get prior consent from recipients before sending commercial electronic messages (CEMs) from Canada or to recipients in Canada. The legislation provides a limited exemption to the prior consent requirement for charities registered in Canada (created or established in and residing in Canada) that send CEMs with the primary purpose of raising funds for the charity. Importantly, however, the exemption does not apply to US organizations sending CEMs to or from Canada. Because of the complexity of the law and the limits of the exemption, we recommend all organizations obtain consent from each intended recipient of any CEM sent from Canada or to recipients in Canada, if possible before July 1, 2014.

What you need to know about consent

The sender of CEM has the burden of proving the recipient gave prior consent. As a result, we recommend getting express, written consent from each person to whom you intend to send a CEM, which may be obtained electronically. All messages requesting consent must state the purpose for which consent is being sought and include the prescribed information required for every CEM (as detailed below). It is important to keep records of the time, date, and purpose of all consents received. While a potential recipient may provide consent by checking a box on a webpage to indicate consent, such boxes cannot be pre-selected. It is also impermissible to bundle a consent provision with other terms of agreement.

CEM required information

A CEM is an electronic message that has as its purpose, or one of its purposes, to encourage participation in a commercial activity. CEMs include emails, text messages, instant messages, and social network messages. Each CEM must include the following required information:

• Who sent the message;
• Who/what organization the message is sent on behalf of; and
• Contact information for both of the above, including a physical address, which must be valid for at least 60 days after the message is sent.

All CEMs must also include an unsubscribe mechanism, whereby the recipient must be able to decline to receive further messages using the same electronic means as the CEM at no personal cost. If a recipient elects to unsubscribe, organizations must ensure no further messages are sent within 10 business days after unsubscribing.

While there are several exceptions that allow CEMs to be sent in certain circumstances without prior express consent, given the relative complexity of these exceptions and the steep penalty for non-compliance with CASL (a fine of up to $10 million Canadian dollars per violation for organizations), we recommend organizations either obtain express, written consent for every CEM sent or consult legal counsel to determine whether the organization’s situation fits one of the narrow exceptions to the law.