Fresh Data Blog
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Every Email (in Canada) Has Its CASL
Date: April, 2014 --
July 1, 2014, Canada’s Anti-Spam Law goes into effect. The law was adopted in 2010
and has been subject to rule-making and interpretation exercises since then.
This law has been described by one commentator as “the harshest of its kind
among G8 countries”. Here we outline the core principles of the statute and some
“high level” compliance recommendations. Be advised, if your database contains
Canadian email addresses, you need to protect your company from potentially
to Those South of the (Canadian) Border
particular, American marketers must recognize the following three critical
differences with the CAN-SPAM law with which they are likely more familiar:
Unlike CAN-SPAM, this is an “opt-in” statute. It’s up to the marketer to obtain
consent before sending a commercial email or other commercial electronic
message. In short, you can’t prospect with email without explicit consent from
those whom you are emailing.
The statute applies to senders no matter where in the world they may be; you
must comply with the statute or face potentially ruinous litigation.
Potential fines are stratospheric.
statute prohibits the sending of any “commercial electronic message” to any
“electronic address” in Canada without the recipient’s “expressed prior
consent”, where the purpose is to promote or establish a commercial activity. It’s
more than just email; it covers text messages, sound messages through email
files or otherwise, voice messages and images sent to an electronic address. By the way, the bill prohibits “sending’; it’s
still a violation even if an
unsolicited message is trapped in an ISP’s spam filter and never reaches the
more and more digital platforms develop which marketers can use to promote
their offerings, it will be the wise company which asks itself whether the
deployment of that platform will involve a “sending’ of your company’s
commercial offer to an electronic address in Canada. For example, if your LinkedIn
page attracts Canadian links which you intend to market to through postings
that get distributed automatically, do you disclose this intent somewhere
prominently? Your probably should get “expressed consent” to those requesting
or offering to link to your site.
law’s requirement of expressed consent also applies to the “installation of
computer programs”. The purpose and function of the program must be clearly
described beforehand, and of course this would be in the context of a
commercial relationship. This will not apply to updates and upgrades done in
the normal course of maintaining the program. Also, express consent is
considered to have been given in the case of computer programs such as cookies,
HTML code and Java Scripts where it is reasonable to believe from their conduct
that the person wants the program to run on their computer. One supposes that
this would be the case regarding on-line meeting and communications programs. While
most of these ask for a webinar attendee’s consent to load, some do not. It
would be wise to check the disclosures and consent acquisition protocols of the
programs you use.
addition, the un-consented acceptability of hard to delete adware is
questionable, since most of it does not explain itself coherently or
Consent Must Be
the law, a business must obtain the “expressed” consent of the recipient before
sending commercial emails or other electronic messages, unless there is an
“existing business relationship” or “an existing non-business relationship.” In
the case of pre-existing business and non-business relationships, a 3-year
transitional period starts on July 1 during which consent to send commercial
electronic messages is implied.
would, however, be unwise not to put in place an aggressive “consent
acquisition” campaign regardless of that transitional period, unless your
customer file is very carefully “time” delimited. The transitional period exception won’t apply
to relationships not existing on July 1.
Certainly opt-in tools on websites
will be critical, and might constructively specifically mention that the
individual is consenting “with respect to Canadian legal requirements for
commercial electronic messages”.
will be wise to maintain a record of date, time, and substance of the consent
in the customer file you maintain, or in a communications history file.
A “Business” Relationship
constitutes a “business relationship” under the law is basically a matter of
common sense. The statute defines the relationship in terms of actions or
messages relating to actions. Generally,
if it feels like business, it’s a business relationship. A business
relationship includes enquiries also, but only for a duration of six months per
“non-business relationship” is similarly a matter of common sense. The non-business relationship might have
involved a donation or a charitable gift made within the previous two years,
such as to a political party, charity or a candidate for public office.
of course, there are exceptions to the consent requirement.
- Responding to a request
for a quote
Information regarding a subscription, membership, or maintenance arrangement of
- Information regarding
delivery of a product or service previously ordered
- Personal messages
Dismiss This Threat
The penalties for
violation of this statute are terrifying: up to $1 million for individual
violators and up to $10 million for business violators. The fines are “per
violation,” which could refer to a campaign, or to each message within the
campaign. No one knows what that term means, and it will be left for a judge to
determine. But do you want to be the test case for the courts to decide which
Worst of all, unlike any
other anti-spam legislation we know of, the statute creates a private “right of
action” for any individual or
business that has been affected by a violation.
Thus, those 1,500 very annoyed Canadian housewives you inadvertently
sent an offer to could seriously gang up on you. To further focus the
attention, corporate officers and directors can be held personally liable for
violations. Finally, recall that Canadian lawyers, like their American
colleagues, will work on a contingent fee basis.
While it’s your
responsibility to ensure compliance, Data Services is here to assist with your
worldwide email marketing programs and international data quality management
requirements covering 240 countries and territories. Need help with compliance
in Canada or elsewhere? Feel free to reach out and we’ll put you in touch with the
right people to lend a hand.