As noted in a recent blog, Canada's anti-spam legislation, generally known as CASL, came into effect in large part on July 1, 2014. We thought it would be helpful to remind people of some of CASL's key components.
Today we will look at some background and key requirements in the form of frequently asked questions. A good starting point is to remember that CASL regulates commercial electronic messages – electronic messages of a non‑commercial nature are not caught. (Please keep in mind that there are many details not included in this overview and that, like most things in life, the specific needs depend on the specific facts.)
What is the main requirement under CASL?
As a starting point, it is important to remember that under CASL the basic rule, subject to a few exceptions, is that commercial electronic messages cannot be sent unless both the consent and content requirements are met. We will elaborate on the details of those requirements in future blogs.
What is a CEM? Does CASL apply to text messages, voicemails and faxes?
A "commercial electronic message" or "CEM" is an electronic message that, having regard to the content of the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity. It includes messages that offer to sell, advertise or promote any product or service. "Electronic message" means a message sent by any means of telecommunication, and includes email and text messages. It does not include live two‑way phone calls, faxes or "snail mail". "Commercial activity" is broadly defined and means any transaction, act or conduct that is of a commercial character, whether or not there is an expectation of profit.
What is considered "commercial"?
As defined in CASL, the term "commercial activity" means any activity that is of a commercial character, whether or not the person who carries out the activity does so in the expectation of profit. While there will be activities that an organization conducts which are non‑commercial, such as an email notifying members of a change in address of a meeting, organizations will be subject to CASL to the extent they send commercial electronic messages – for example, emails advertising a discount with a sponsor. Note that based on the definition, a CEM need only have one of its purposes be commercial; a message need not be solely commercial to be considered a CEM.
If an electronic message has no commercial purpose, for example an email or text whose content only notifies directors of an issue regarding a governance matter, then that message is not a CEM and does not need to comply with CASL.
There are many nuances to CASL and its application.