Canada’s Anti-Spam Legislation: It’s Time to Prepare

December 2013 | Jennifer Babe, Kathryn M. Frelick, Brian J. Curial

Canada’s anti-spam legislation (CASL) is coming into force in less than seven months.

CASL will most likely apply to you and your organization.

On December 4, 2013, the Government of Canada announced that Canada’s anti-spam legislation (CASL) will come into force on July 1, 2014.

Will CASL apply to you and your organization?

  • CASL has the potential to impact any individual or organization in Canada who sends e-mails, texts, social media messages or any other form of electronic communication to third parties, whether they are businesses, consumers or individuals.

Why should CASL matter to you and your organization?

  • Failure to comply may lead to significant consequences and penalties:
    • Major monetary penalties may be imposed
    • Corporate officers and directors may be held personally liable for corporate violations
    • Vicarious liability may arise for violations committed by employees or agents
    • Private right of action, including the threat of class action law suits
    • Reputational risks

What’s prohibited?

  • CASL prohibits the sending of commercial electronic messages in any form without the prior consent of the recipient, unless subject to a statutory exemption.
  • The definition of “commercial” includes activities carried on without the prospect of gain, catching many organizations including not-for-profits and charities.
  • Even with a recipient’s consent, the sender of a commercial electronic message will have to identify themself in their electronic communications and provide a way for recipients to unsubscribe from receiving further messages.
  • Prior consent is also required for the installation of software on another person’s computer system (unless required under a contract).
  • CASL prohibits fraudulent and misleading activities such as phishing, hacking, malware and spyware, and harvesting of email addresses.

Exceptions to CASL compliance may apply to you and your organization

  • There will be some exemptions from compliance with CASL, including messages sent:
    • by a business to an existing customer if it relates to the activities of the business
    • internally within a business if it relates to the activities of the business
    • in regard to a legal obligation, such as product safety recall
    • to respond to a consumer inquiry or business referral
    • within an existing “family relationship” or “personal relationship”
    • registered Canadian charities will also have a limited exemption where they send an electronic message primarily for fundraising purposes, but not otherwise.

New consents are required

    • Consent under CASL can be express or implied. Consent may be implied, for example, where the parties have an “existing business relationship” or “existing non-business relationship”. The requirements are quite specific and have time frames associated with them that must be tracked. As a result, organizations will need to look carefully at the type of consent that they use.
    • Unlike Canadian privacy laws which permit “opt out” consent for less sensitive types of information, such as receipt of marketing information, this form of consent is not sufficient under CASL. Positive, “opt-in” consent is required under CASL.

When will CASL start to affect you and your organization?

  • July 1, 2014 for the majority of CASL’s requirements
  • January 15, 2015 for prohibitions related to computer programs
  • July 1, 2017 for private right of action

What’s next?

Miller Thomson LLP will be communicating over the coming months about this legislation and steps that individuals and organizations can take to comply with CASL’s requirements. Further information will be posted to our website or you can subscribe to receive Miller Thomson CASL (Canada’s Anti-Spam Legislation) updates by email.

In the meantime, if you would like to discuss CASL and the implications for your organization, please contact your Miller Thomson advisor or one of our CASL specialists listed below.

Alexandre  Ajami

Jennifer  Babe

Lonnie  Brodkin-Schneider

Brian J. Curial

Kathryn M. Frelick

Susan M. Manwaring

Eve C. Munro

J. Andrew   Sprague

Andrew  Valentine

Contributing Authors

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

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