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Electronic marketing and internet use

Electronic marketing
Are there rules specifically governing unsolicited electronic marketing (spam)?

Canada has one of the most restrictive regimes governing unsolicited electronic marketing. The law is known as Canada’s anti-spam legislation (SC 2010, c 23) (CASL).

CASL regulates the sending of commercial electronic messages. Subject to limited exceptions, organisations are subject to CASL when sending commercial electronic messages either:

  • from Canada to anywhere in the world; or
  • from outside Canada to a person in Canada.

CASL is stricter than similar laws in other jurisdictions.

A ‘commercial electronic message’ is any business email, text or social media direct message that promotes a company, product or person, or invites the recipient to engage in a transaction.

Certain messages are exempt under CASL, including:

  • internal messages relating to the business of an organisation, such as messages sent by an employee, representative, consultant or franchisee to another employee, representative, consultant or franchisee which concern the business activities of the recipient;
  • messages between businesses that are in a business relationship; and
  • messages responding to inquiries or complaints.

There are three preconditions to sending a commercial electronic message, as follows.

Consent or an exception to consent  
Organisations require express or implied consent to send a commercial electronic message. Express consent is generally the default and preferred consent and requires a positive action on the part of the recipient. Express consent cannot be bundled with other agreements. When obtaining express consent, there are specific disclosure requirements including (but not necessarily limited to) the name of the entity seeking consent, the address of that entity and a telephone number, email address or website through which the entity can be contacted. The individual must also be told expressly that he or she may withdraw consent.

Implied consent may be relied on only in limited circumstances, such as where there is an ‘existing business relationship’ between the sender of the message and the recipient. An ‘existing business relationship’ is defined to include (among other things):

  • the purchase or lease of a product, goods, a service, land or an interest or right in land within two years before sending the message;
  • the acceptance of a business, investment or gaming opportunity within two years before sending the message;
  • a written contract currently in existence or expired within two years before sending the message; and
  • an inquiry or application within six months before sending a message.

Identification requirements
Organisations must include prescribed information identifying the sender and the person on whose behalf the message has been sent. This information must include a mailing address for the sender and the person on whose behalf the message has been sent as well as one alternate method to communicate with the sender and, if applicable, the person on whose behalf the message was sent. This alternative contact information must include either an email address, phone number or website contact form address.

A valid and working unsubscribe mechanism  
Each commercial electronic message sent must include a clear and prominent unsubscribe mechanism that enables the recipient to indicate that he or she no longer wants to receive specific types of or all commercial electronic messages from the organisation. CASL requires the unsubscribe to take effect as soon as possible, but no later than 10 business days after the request is made.

Violations of the provisions governing commercial electronic messages could lead to administrative monetary penalties of up to C$10 million per offence. The Canadian Radio-television and Telecommunications Commission is the primary government body tasked with enforcing CASL and has been doing so aggressively, announcing several investigations and fines in 2015. Further, as of July 1 2017 it will be possible to bring a private action (including class actions) to sue for violations of the provisions governing commercial electronic messages.

Cookies
Are there rules governing the use of cookies?

CASL provides that there is implied consent to the installation of cookies if it would be reasonable to expect that the person consented to their use. Therefore, strictly necessary cookies should not require express consent, provided that there is some notice of them. However, non-strictly necessary cookies require opt-out consent. If an organisation engages in targeted advertising or online behavioural advertising across multiple websites, heightened disclosure may be required, such as through use of icons or ‘just in time’ notices (eg, cookie banners).

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