Compliance with Canada’s Anti-Spam Legislation (CASL): What You Need to Know

This blog post is not legal advice and is for general informational purposes only. Always speak with a lawyer before acting on any of the information contained herein.

On July 1, 2014, Canada’s new anti-spam law (CASL) came into effect and it cast a wide net. If you or your organization communicate with clients, customers, or potential clients or customers through electronic means, take caution: CASL probably applies to you or your organization.

Compliance with CASL is no joking matter. Some expected that in the early days of the law, the government would give warnings for non-compliance. This has not been the case. Instead, first-time offenders have been surprised with steep penalties, even if they immediately took steps to achieve compliance.

Penalties

Just how big are the penalties? So far, it’s been reported that penalties have ranged from $48,000 to $1.1 million; however, fines can reach up to $10 million for a single violation.

Application of CASL

A simple three part test can help you determine if you or your organization needs to comply with CASL.

The CASL Application Test:

1. Am I a human or am I involved with an organization (including businesses, charities, and non-profits)?
2. Do I or my organization do either of the following?
   • Use email, text message, social media, or instant messaging to send commercial or promotional information about your organization to reach customers, clients, or prospects; or
   • Install software programs on people’s computers or mobile devices?
3. Do I or my organization carry out the above activities in Canada?

If you answer yes to questions 1, 2 and 3, then compliance with CASL is mandatory.

How to Comply With CASL

This is not a comprehensive guide on compliance, but rather an overview with some key tips. If you’d like to know more about CASL and how you can comply with it, one of the lawyers at Segev LLP would be happy to speak with you.

Commercial electronic messages (CEMs) are the target of CASL. Generally, a CEM is any electronic message that encourages participation in a commercial activity. More specifically, a CEM is an electronic message that:

1. offers to purchase, sell, barter, or lease a product, good, service, or land;
2. offers to provide a business, investment, or gaming opportunity;
3. advertises or promotes anything referred to in 1 or 2; or
4. promotes a person as being a person who does anything in 1, 2, or 3.

Watch out! Even if the message doesn’t do any of the above, but it links to a website that does do something listed above, then the message is a CEM and CASL applies.

CEMs sent by you or your organization must meet, among other things, the following requirements:

1. The recipient of CEM must have consented to receiving it.
   • Consent usually must be provided expressly; however, in some circumstances implied consent will suffice.
2. The message must identify the person who sent the message and the person on whose behalf the message is being sent.
3. The message must provide the recipient with sufficient information to contact the sender of the message.
4. The message must have an unsubscribe mechanism that allows the recipient to be unsubscribed within 10 business days.

Tip: Make sure you keep good records of any consent you have received.

Tip: If you obtain consent using a web form with a checkbox, the checkbox must be unchecked by default. In other words, recipients must opt-in to receiving your CEM. Merely giving them the ability to opt-out is not sufficient.

Exceptions

There are numerous exceptions to CASL that may apply to your or your business. If you’d like to know more, contact one of the lawyers at Segev, LLP or visit us in Vancouver, BC and we’d be happy to help.