Every brand’s digital marketing campaign will likely include an email campaign. With the adoption of Canada’s Anti-Spam Legislation (“CASL”) in July 2014, sending commercial electronic messages has become a complicated, but necessary, feat.
What is CASL?
CASL was created to deter unsolicited commercial electronic messages, aka spam. It applies to any individual or company that is sending emails to a recipient in Canada (regardless of the location of the sender), as long as the purpose of the email is to encourage participation in a commercial activity. In order to send a commercial email that is in compliance with CASL, the sender must have either the recipient’s express or implied consent to receive the email or has ensured that the recipient falls under the itemized list of exemptions for consent. Given that CASL is a consent-based regime, carefully understanding what constitutes consent to receive emails and what constitutes an exemption to obtaining consent is important.
CASL dictates the content that is included in the email message, including sender information and unsubscribe mechanisms. A review of CASL decisions highlights the importance of ensuring that these requirements are complied with.
What Happens if You Don’t Comply with CASL?
Currently, the Canadian Radio-television and Communications Commission (“CRTC”) can issue administrative penalties for CASL infractions, which includes monetary penalties. In addition, the CRTC can prescribe corrective measures.
As a new piece of legislation, CASL included a sunrise period for private rights of action whereby the cause of action was expanded to also include contravention of PIPEDA and the Competition Act. Brands and the legal community alike queried whether Canada would see a new subject matter rise for class action suits. The phase in of the private right of action was supposed to occur in July 2017, however, the Federal Government delayed this on the basis that it was prohibitive for businesses. The Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development stated:
“Canadians deserve to be protected from spam and other electronic threats so that they can have confidence in digital technology. At the same time, businesses, charities and other non-profit groups should have reasonable ways to communicate electronically with Canadians. We have listened to the concerns of stakeholders and are committed to striking the right balance.”
And so, at the moment, infractions of CASL are still being handled by the CRTC.
Legislative Review of CASL
As part of CASL, the legislation is subject to review legislative 3 years after it came into force, after which a report was issued. For the most part, the report called for clarification on provisions within CASL that lacked clarity. The report also recommended that the roll out of the private right of action also continue to be withheld, pending further clarification of provisions within CASL.
Overall, the government’s position can be summarized as follows:
“The Act under review is no ordinary legislation. It makes extensive changes to the conduct of electronic commerce in Canada…The evidence presented during this statutory review reveals wide differences of opinion of the Act…As a result, the Committee joins its voice to that of witnesses demanding clear, effective, accessible and regularly updated guidance materials from enforcement agencies…the Act and its regulations require clarifications to reduce the cost of compliance and better focused enforcement…The Government will be in a better to assess the impact of the coming into force of the private right of action once these clarifications are implemented”.
What Can We Expect?
In one word: change. It is unlikely that the government would strongly encourage the revision and/or clarification of CASL, whilst maintaining the status quo.
If your brand has a digital marketing campaign that targets Canadians, feel free to reach out to Froese Law. if you need assistance with getting your brand CASL compliant.