Despite the fact that Canada’s Anti-Spam Law(“CASL”) was enacted almost three (3) years ago, its implementing regulations were only recently adopted and are due to go into effect on July 1, 2014.
In comparison to the CAN-SPAM Act, CASL is a more restrictive law, encompassing a wider variety of communications. While the CAN-SPAM Act only targets communications sent via e-mail, CASL regulates any electronic message delivered in connection with a commercial activity, whether or not the person who transmits the message does so with the expectation of earning a profit. This includes almost all messages sent electronically, including e-mail, text messages and social media messages that endeavor to communicate, market or sell products and/or services to Canadians. Most importantly for our readers is the fact that CASL’s regulations apply to all commercial electronic messages (“CEM”) received within Canada, regardless of where they are sent from. This means that United States marketers could be held liable for CASL violations.
CASL Consent Requirements
We have written extensively about the CAN-SPAM Act and its consent requirements. It is important to highlight the fact that the consent requirements under CASL differ significantly from those of CAN-SPAM. CASL mandates that consumers “opt-in” to the receipt of commercial communications and that businesses obtain the implied or express consent of recipients before sending these communications.
Express consent must be meaningful and effective, clearly and simply indicated. Those seeking to gain express consent must make clear to the recipient the names of the entities seeking consent and the entity, if different, on whose behalf consent is sought, including its physical and mailing address, telephone number, email address and web address. Importantly, businesses using a third party to secure consent must ensure that it is clear that the recipient’s consent is being requested. Additionally, there should be a statement informing the recipient that he/she can withdraw consent by using the contact information provided.
Implied consent under CASL exists under three (3) circumstances: 1) when there is a prior business relationship between the sender and recipient; 2) when the recipient has conspicuously published his or her electronic contact information online, without including a statement that he or she does not wish to receive communications; and/or 3) when the recipient has disclosed to the sender his or her email address without indicating that he or she does not wish to receive communications.
Due to enforcement implications that can reach outside the borders of Canada, businesses that conduct email and text message marketing throughout North America should pay close attention to the promulgation of CASL’s final regulations and its requirements.