Canada's Anti-Spam Legislation (CASL)
In our modern world, many businesses operate on an e-commerce platform. Many of which use email marketing such as sending out weekly newsletters, or if you are in retail perhaps an email promoting current or upcoming sales. With an e-commerce business, an email campaign is inevitable. Which is why it it crucial to understand and comply with Canada's anti-spam legislation (CASL)
What is CASL?
CASL was created to deter unsolicited commercial electronic messages (CEMs), or as we know it as spam emails. It applies to any individual or company that is sending emails to a recipient in Canada as long as the purpose of the email is to encourage participation in a commercial activity, such as the sale of a product. 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. CASL dictates the content that is included in the email message, including sender information and unsubscribe mechanisms.
What Happens if You Don’t Comply with CASL?
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.
CASL laws apply to any CEM that is sent or accessed by a computer within Canada. Some organizations that operate outside of Canada will also be required to comply with CASL if their communication is with Canadian consumers.
Express Consent Vs. Implied Consent
It is important to understand the differences between the two types of consent when referring to CASL, because it can be very complex.
Express consent requires clear and informed consent on the part of the person consenting to receive the messages; and
Implied consent is based on the existence of a prescribed relationship between the sender and recipient, or on the presence of a specific set of circumstances
It is also important to note that under CASL, the onus is always on the sender to prove consent.
Personal Information Protection and Electronic Documents Act (PIPEDA)
PIPEDA, the acronym for Personal Information Protection and Electronic Documents Act, is a federal legislation that governs how companies manage, collect, use and disclose third party personal information gathered in Canada in the course of a commercial transaction. Recent amendments made by CASL with respect to PIPEDA include the requirement for consent to collect, use and disclose personal information. However, this does not apply where electronic addresses are collected by the use of a computer program. The Office of the Privacy Commissioner of Canada (“OPC”) is considering whether the current provisions are sufficient, or need bolstering and are required to consult the Competition Bureau and CRTC when determining enforcement for non-compliance of CASL.
The Competition Act
Recent amendments have been made by CASL to the Competition Act that make it an offence to send a CEM that is false or misleading in a material respect or to send or make a false or misleading representation in the sender information. The general provisions under this legislation can be both civil or criminal. That's right, you can be criminally penalized for having an advertising campaign that is misleading. An advertisement that is accused of being misleading could gain this title if any marketing campaign has falsely promoted, supplied or sold a product or business. To learn more about misleading advertisements, take a look at our previous article Is Your Advertising Campaign Misleading?.
There are exemptions where CASL laws do not apply. These exemptions include:
Personal or family relationship
Not a commercial electronic message
Business to business exemption
Response to an inquiry or complaint
Satisfying a legal right