Anti-Spam Legislation (CASL)

Please note: This article is for informational purposes only. It is not intended as legal advice, nor does it include all of the terms of the law. Please seek legal counsel to answer questions and provide feedback for compliance with CASL.

Canada's Anti-Spam Legislation (CASL) took effect on July 1, 2014. CASL applies to most forms of electronic messaging, including email, SMS text messages, and certain types of messages via social networks. The law applies to any commercial electronic message (CEM) that is sent or access by a computer system in Canada.

CEM includes any message with one of its purposes to encourage participation in commercial activity (advertisements, promotions, offers, business opportunities, etc.)

Liability

The consequences for spammers includes fines of $1-10M per violation. Individuals and companies are responsible and liable for messages they send. CASL has established a transition period during which the governing bodies may investigate and litigate against parties who do not comply with CASL. However, after July 1, 2017, any individual will be able to sue any entity they believe to be sending spam messages.

Consent

Consent is required before sending a CEM. Consent can be either express or implied.

To obtain express consent, you must:

• clearly describe the purpose(s) for seeking consent;
• provide the name of the person requesting consent, and identify on whose behalf consent is sought;
• provide contact information for either person seeking consent -- mailing address and either a telephone number, email address or web address; and
• indicate that the recipient can unsubscribe

Under CASL law, a pre-checked box CANNOT be used to obtain express consent.

Implied consent is acceptable in the following circumstances:

• the sender and recipient have an existing business relationship (recipient has made a purchase within the past two years or an inquiry within the past two months);
• the sender and recipient have an existing non-business relationship;
• the sender has conspicuously published their electronic address (like on a website), has not stated they do not want to receive unsolicited messages, and the message is related to the recipient's professional capacity; or
• the recipient has disclosed their electronic address directly to the sender, has not stated they do not want to receive unsolicited messages, and the message is related to their occupation or official capacity.

Every CEM must include:

• the name of the person sending the message and identify on whose behalf the message is sent;
• contact information for either of those persons (as described under 'consent'); and
• a mechanism that allows the recipient to easily unsubscribe at no cost. The electronic address or web page for unsubscribing must be valid for a minimum of 60 days. Recipients who unsubscribe must also be unsubscribed “without delay” and no later than 10 business days after asking to be unsubscribed.

Excluded Messages

CASL does not apply for any CEM sent:

• to someone with whom the sender has a family or personal relationship;
• to someone engaged in commercial activity consisting of an inquiry or application related to that activity;
• to another employee, representative, consultant, etc of an organization and the message concerns the activities of the organization;
• to an employee, representative, consultant, etc of another organization if the organizations have a relationship and the message concerns the activities of the recipient organization;
• in response to a request, inquiry or complaint or is otherwise solicited by the recipient;
• to satisfy a legal or juridical obligation;
• to provide notice of an existing or pending right, legal or juridical obligation, court order, judgment or tariff;
• to enforce a right, legal or juridical obligation, court order, judgment or tariff;
• and received on an electronic messaging service if prescribed identifying information and unsubscribe mechanism are conspicuously published and readily available on the user interface through which the message is accessed, and the recipient consents expressly or by implication
• to a limited-access secure and confidential account to which messages can only be sent by the person who provides the account to the recipient with the reasonable belief that the message will be accessed in a foreign state that is listed in regulations and the message conforms to the anti-spam law of that state;
• by or on behalf of a registered charity for the primary purpose raising funds for the charity;
• by or on behalf of a political party or organization, or a political candidate for publicly elected office, for the primary purpose soliciting a donation or contribution

In addition to seeking legal counsel, you can use the following pdfs to assist you with identifying needs for your database and electronic messages:

http://www.nnovation.com/fileadmin/user_upload/Images/nNovation_LLP_CASL_Campaign_Checklist.pdf

http://www.nnovation.com/fileadmin/user_upload/Images/nNovation_LLP_CASL_Database_Checklist.pdf

You can access more information about CASL by visiting http://www.canadianadvertisinglaw.com/anti-spam-law/.

Please also consult our Help Center for instructions on how to re-confirm your contacts to stay in compliance with CASL. The article is titled "Re-confirm Contacts for Email".

The Canadian Anti-Spam Laws (CASL) requires unsubscribe links be working and active for 60 days after an email broadcast has been sent from an email marketing platform. Deleting contacts breaks this unsubscribe link.

We prevent contacts from being deleted to protect our customers from violating the law and potentially incurring fines.

Unsubscribe Mechanisms

CASL’s unsubscribe requirement is generally technologically neutral, but nevertheless must: (i) allow recipients to indicate that they no longer want to receive CEMs using the same electronic message (or if not practical any other electronic means enabling the same result); and (ii) specify an electronic address or web link to unsubscribe.

The electronic address or webpage for unsubscribing must be valid for a minimum of 60 days. Recipients who unsubscribe must also be unsubscribed “without delay” and no later than 10 business days after asking to be unsubscribed.

The CRTC Regulations also require that an unsubscribe mechanism must be “set out clearly and prominently” and “must be able to be readily performed.”

According to CRTC guidelines, for an unsubscribe mechanism to be “readily performed” it must be “accessed without difficulty or delay and should be simple, quick and easy for the consumer to use”.

For more information please visit the following website - http://www.canadianadvertisinglaw.com/anti-spam-law/