New Anti-Spam Legislation in Force July 1, 2014

Key provisions of the government of Canada’s new legislation: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, otherwise known as “Canada’s Anti-Spam Legislation”, or “CASL”, will come into force on July 1, 2014. While CASL will have a much larger impact on the private business sector, it will impact local governments who send electronic messages that contain any form of commercial content.

Among its key provisions, CASL governs the sending of “commercial electronic messages” (“CEM’s”). A CEM is defined under CASL as:

“an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

(a)     offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

(b)    offers to provide a business, investment or gaming opportunity;

(c)     advertises or promotes anything referred to in paragraph (a) or (b); or

(d)    promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.”

A “commercial activity” is defined as:

“any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.”

Under CASL, the sending of CEM’s to an electronic address (which includes email, instant messaging, telephone and similar accounts) is prohibited unless the following requirements are met:

  1. The receiver must have consented to receipt of the CEM. Consent can be either express, or can be implied if the limited circumstances described in CASL apply. As a matter of prudence, express consent should be obtained. CASL and its Regulations set out specific requirements for obtaining express consent. The CRTC has also released Compliance and Enforcement Information Bulletin CRTC 2010-548 which offers some additional guidance about the requirements for obtaining consent.CASL also includes transitional provisions under which consent may be implied for a period of up to three years beginning July 1, 2014, where there is an existing business or non-business relationship that includes the sending and receiving of CEMs.

    The onus is on the sender of a CEM to prove that they have obtained consent. Once consent has been given, the sender of the CEM should obviously keep a record of the consent.

  1. The CEM must identify the person who is sending the message and, if applicable, the person on whose behalf it is being sent. The message must also include the contact information for those persons. This contact information must be valid for a minimum of 60 days after the message is sent.
  1. When a CEM is sent, it must include an unsubscribe mechanism. This provision is very important, as are the following prescribed elements:

(a)     The recipient of the message must be able to unsubscribe at no cost using the same method as the message, or an alternate electronic method;

(b)    There must be a web or electronic address to which cancellation requests can be sent. These addresses must be valid for a minimum of 60 days after any CEM is sent; and

(c)     Once the unsubscribe request is received, the party who sent the CEM has no more than ten business days to complete the request.

Not all commercial electronic messages are affected by CASL. The following are examples or messages that are excepted from the application of CASL: responses to a request for a quote; ongoing commercial transactions; warranty information; factual informationabout a subscription, membership or account; messages sent to a person with whom the sender has a personal or family relationship; and interactive two-way messages between individuals.

The penalties for violating CASL can be significant, and after three years there will be a private right of action for individuals who receive CEM’s without consent.

Local governments will need to carefully consider the content of electronic messages that are sent on their behalf as of July 1, 2014. Electronic messages that encourage participation in a “commercial activity”, whether or not that is the primary purpose of the message, will need to comply with CASL, and the recipient’s consent will be required. For example, emails and other electronic messages that advertise recreational, cultural and similar programs and events, especially where admission fees are to be charged, may well be caught by CASL.