Canada has sent a clear message that it will not tolerate spam. Canada's new Anti-Spam Legislation, or CASL, is designed as one of the most stringent anti-spam regimes in the world. It will impose significant restrictions on the use of electronic messages for commercial purposes and will dramatically impact the communications, marketing and advertising practices of businesses operating in the Canadian marketplace. CASL differs in several significant respects from the U.S. CAN-SPAM Act.

CASL's anti-spam provisions apply to "commercial electronic messages" (or CEMs), which means any electronic message that has a purpose to encourage participation in a commercial activity. CASL's provisions apply to any CEM that is either sent from or accessed by a computer in Canada, so will impact many of the electronic marketing practices of businesses that have an electronic presence in Canada, even if the businesses do not have an actual, physical presence in Canada.
  1. What do I need to know about CASL's impact on commercial electronic messages?
CASL prohibits the sending of a CEM unless: (1) the recipient has consented to receiving the message; and (2) the message meets certain form and content requirements. With respect to the consent requirement, there are instances when an individual's consent to receive a CEM may be implied. For example, consent may be implied if there is an "existing business relationship" or an "existing non-business relationship" between the sender and the recipient, which are terms that are narrowly defined in CASL. However, generally, consent must be express.
 
In terms of form and content, CASL requires that the CEM must set out certain prescribed contact information of the sender. The CEM must also include an unsubscribe mechanism that must be "able to be readily performed" and that must take effect no later than 10 business days after the unsubscribe request is sent.
  1. What are the requirements for an express consent?
A request for express consent to send CEMs must clearly state: (1) the purpose or purposes for which the consent is being sought; (2) prescribed contact information of the person requesting consent; and (3) a statement that the recipient may withdraw consent.
 
Guidance documents published by the Canadian Radio-television and Telecommunications Commission state that an express consent must be obtained by an "opt-in" mechanism (e.g., a box that the recipient must actively choose to check) rather than an "opt-out" mechanism (e.g., a pre-checked box). 
  1. Are there any exceptions?
Yes. The consent and the form and content requirements do not apply if the person sending the CEMs has a "personal or family relationship" with the recipient. "Personal relationship" and "family relationship" are defined in the regulations. The requirements also do not apply to a commercial electronic message between persons engaged in commercial activity if the message is merely an inquiry or application related to that commercial activity.
 
Proposed regulations under CASL would also exempt certain other types of messages from both the consent and the form and content requirements (e.g., certain business-to-business messages, messages responding to inquiries, messages to satisfy legal obligations). However, such regulations have not yet been finalized.
There are additional provisions in CASL and the proposed regulations that exempt certain types of messages from the consent requirement. However, the form and content requirements must still be met.
  1. What are the penalties for violating CASL?
Failure to meet CASL's CEM requirements may lead to significant penalties for a business. A single violation by a corporation could be subject to an administrative penalty as high as C$10-million. CASL also provides for a private right of action that will allow any person who believes they have been affected by breach of the act to apply to a court to seek redress. The court order may require the person who contravened the act to pay the applicant a specified amount of damages for each day on which the violation continued. Civil damages may also be sought by way of class action, creating liability exposure for all businesses.
  1. When will CASL come into force?
Although CASL was passed by Canadian Parliament in 2010, there have been numerous delays in this legislation coming into force. There is one remaining set of regulations that has yet to be finalized. These regulations were published in draft form at the beginning of 2013, with a public comment period to follow. Once the regulations are finalized, there will likely be some period of delay before CASL comes into force in order to allow businesses to bring their practices into compliance. Although it is not certain, CASL will likely come into force in 2014.