You've probably heard that the Canadian Anti-Spam Law (CASL) went into effect July 1, 2014. If you're in Canada or send to Canadian residents, you'll likely need to comply with CASL. Luckily, there's a three-year transition period, until July 1, 2017, during which you can take steps to ensure your list stays in compliance under the law.
This article is provided as a resource, but does not constitute legal advice. Our support team is available to assist you, but none of our agents are attorneys. If you have more questions about CASL, we encourage you to contact an attorney in your area who is familiar with this issue.
There are new consequences for spammers, including fines of $1-10M per violation. It's important to note that individuals and companies, including directors, officers and other agents, are responsible and liable for the messages they send.
During the transitional period, the Canadian Radio-Television and Telecommunications Commission (CRTC), the Competition Bureau, and the Office of the Privacy Commissioner of Canada, may investigate and litigate against entities who don't adhere to CASL. After July 1, 2017, any individual will also be able to sue any entity they believe is sending spam messages.
What's covered under CASL
CASL regulations apply to any "Commercial Electronic Message" (CEM) sent from or to Canadian computers and devices in Canada. Messages routed through Canadian computer systems are not subject to this law.
A CEM is any message that:
Is in an electronic format, including emails, instant messages, text messages, and some social media communications;
is sent to an electronic address, including email addresses, instant message accounts, phone accounts, and social media accounts; and
contains a message encouraging recipients to take part in some type of commercial activity, including the promotion of products, services, people/personas, companies, or organizations.
Fax messages and fax numbers aren't considered electronic formats or addresses under CASL.
These types of electronic messages are exempt from CASL for various reasons.
If your message does not meet one of these criteria, consent is required under CASL.
The law defines two types of consent: implied and express. Implied consent is a looser interpretation, whereas express consent requires action from both sender and recipient.
Implied consent includes when:
A recipient has purchased a product, service or made another business deal, contract, or membership with your organization in the last 24 months; You are a registered charity or political organization, and the recipient has made a donation or gift, has volunteered, or attended a meeting organized by you; or A professional message is sent to someone whose email address was given to you, or is conspicuously published, and who hasn't published or told you that they don't want unsolicited messages.
If your recipients don't meet any of the above criteria, then express consent is required before you can send campaigns to them.
Express consent means written or oral agreement to receive specific types of messages, for example "You want to receive monthly newsletters and weekly discount notifications from Company B."
Express consent is only valid if the following information is included with your request for consent:
During the transition period, July 1, 2014-July 1, 2017, you may continue to send messages to recipients from whom you have implied consent, unless they unsubscribe. After the 2017 cut-off date, you may only send to recipients with express consent or whose implied consent is currently valid under CASL—that is, 24 months after a purchase or six months after an inquiry.