To control unnecessary spamming, businesses are now required to comply with the Canadian anti-spam legislation. Whether your business directly engages with your customers, or is engaged in telemarketing, it’s important to know the basics of this law.
The Canadian anti-spam legislation (commonly referred as the “CASL”) regulates the sending of “commercial electronic messages” to consumers.
Its purpose is to protect Canadian consumers, while at the same time ensuring that businesses in Canada can continue its commercial activities within the bounds of the law.
The Canadian anti-spam legislation went into effect on July 1, 2014, which made numerous amendments to certain laws.
The administration of this law is shared among three regulatory bodies:
- Office of the Privacy Commissioner of Canada
- Canadian Radio-television and Telecommunications Commission (CRTC)
- Competition Bureau
Application of CASL
While it applies to everyone, the Canadian anti-spam legislation is highly relevant if you’re a marketing or advertising company, or a business who directly sends out promotional messages to your customers.
The law specifies that its prohibitions apply when “commercial electronic messages” are sent to an “electronic address”. Each of these phrases has technical meaning under the law, and it’s better to see if your business’s activities fall under these.
Commercial electronic messages (section 1 (2), CASL)
A commercial electronic message’s purpose is to encourage the receiver to participate in a commercial activity by the sender.
Examples of these messages provided by the law are messages that:
- offer to purchase, sell, barter, lease, or advertise and promote a product, goods, service, or land (or an interest or right in land)
- offer a business, investment, or gaming opportunity
- promote a person, or their public image, who is engaged in any of the above-mentioned activities
- request for consent to send a message for any of the above-mentioned activities
To evaluate whether your email, SMS, or any other electronic message falls under the law, you may look at your message’s content, hyperlinks, and contact information.
Electronic address (section 1 (1), CASL)
An electronic address includes any of the following:
- Email account
- Telephone account
- Instant messaging account
- Any other similar accounts (e.g., Facebook Messenger)
Guidelines have been issued by the CRTC, which you may refer to when sending out these types of messages to electronic addresses. You can ask a telecommunications lawyer for further interpretations of these guidelines.
Canadian anti-spam law requires that:
1. Consent must be obtained before any commercial electronic messages may be sent to a consumer
2. The sender’s identification information must be included in any commercial electronic message
3. There must be an unsubscribe mechanism available to consumers in these messages
This means that if your business is engaged in the sending of commercial electronic messages to electronic addresses, these three requirements must be complied with. Otherwise, you would be violating the CASL.
The Canadian anti-spam legislation prohibits sending commercial electronic messages without the receiver’s express or implied consent (section 6 (1) (a), CASL).
From this provision, consent may either be:
1. Express: obtained in writing (through a request or form for consent) or orally; or
2. Implied: obtained in two ways:
- when the sender and recipient have an existing relationship (business or non-business alike); or
- when the recipient published their electronic address, or when the recipient disclosed their electronic address to the sender; upon the conditions that the recipient did not state that they do not want to receive commercial electronic messages, and that the message must be relevant to the recipient’s business.
In practical terms, CASL may not apply if you (the sender) have business-to-business relations with the recipient. For example, consent is not required when the sender is your business’s employee, representative, consultant, or franchisee, if it is related to your business relations with the recipient.
For an example of implied consent, watch this video:
Canadian anti-spam legislation is one of three federal laws that fall under Canadian advertising law.
It also provided by the Canadian anti-spam legislation that the commercial electronic message must include the sender’s information (section 6 (2) (a), CASL).
The message must also include the contact information of the sender (section 6 (2) (b), CASL).
Specifically, the messages that you will send must include the following:
- of the person sending the message; or
- of the business, if different from the person’s name; or
- of the person for whom the message was sent
2. Contact information:
- the mailing address; and
- the telephone number, email address, or website
When the text cannot accommodate all the necessary information mandated by law, a hyperlink to your business’s website where this information is available may be placed instead. If you resort to this method, certain conditions must be met, such as:
- the website is readily accessible
- access to the website is at no cost to the recipient of the message
In addition, your business’s website must also contain the unsubscribe mechanism.
An unsubscribe mechanism must be included in a commercial electronic message (section 6 (2) (b), CASL).
Some examples of unsubscribe mechanisms that you can use are:
- When the message is sent through text: you can include the option where the recipient may reply to unsubscribe, such as texting the words “STOP” or “UNSUBSCRIBE”
- When the message is sent through e-mail: an unsubscribe link in the email may be included, which will refer the recipient to your webpage for them to unsubscribe
To be compliant with the CASL, this process must be simple, quick, and easy. It must not require any other act or payment from the recipient of your message to unsubscribe from your messages.
Upon receiving the unsubscribe request, it is best practice to act on it within 10 days, or to remove the number from your system within 14 days from the consumer’s request.
However, you may give options to your receiver whether they prefer to unsubscribe to all or some of the messages from your business.
In addition to these three requirements, the Canadian anti-spam law also provides for other requirements, such as the requirements when to allow the installation of a software in a recipient’s computer.
For any questions regarding your business’s compliance with the Canadian anti-spam legislation, consult with the best telecommunications lawyers in Canada as ranked by Lexpert.