Canada has enacted a tough new anti-spam law. In a series of blogs, we will explore the scope of activities permitted and prohibited by this law, and discuss the wide-reaching implications of this legislation on electronic business activities.

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, S.C. 2010, c. 23 – also known as Canada’s Anti-Spam Law (“CASL”) – received royal assent on December 15, 2010, and will come into force on July 1, 2014.

CASL imposes strict limitations on the manner in which a person or business can send electronic messages, alter the transmission data of messages, install computer programs or software, and create and use lists of electronic addresses. A key feature of CASL is that it is an opt-in regime: the sender of an electronic message must have the consent of the person receiving it. In contrast, most other anti-spam regimes are opt-out systems.

CASL is generally aimed at preventing unsolicited electronic communications, and contains broad exemptions for pre-existing business and personal relationships, and other commercial communications.

It is important to note that until the provisions of CASL are litigated and tested in court, the exact scope of activities that is captured is unclear.

Generally, a business must ask the following four questions to determine if they are compliant with CASL’s anti-spam provisions:

  1. Is the message exempt from CASL?   The message will be exempt, for example, if it fits into an exception for family relationship or inquiry related to commercial activity.  It will also be exempt if it is not a commercial message.
  2. If CASL applies, is there an exception to the requirement for consent?    Consent is not required to provide, for example, a requested quote, facts about a purchase, warranty information, etc.
  3. If consent is required, do you have implied consent to send the message? Consent can be implied because of a pre-existing business relationship, and in other situations.
  4. If not, do you have express consent to send the message?   Express consent can be in writing or oral.

In the next installment of this series on CASL, we will explore CASL’s prohibitions in more depth.

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