Various organizations and individuals are considering changes to existing practices to comply with Canada’s Anti-Spam Law (“CASL”). It has become evident that there is more to CASL than its title suggests.
As explained in our previous post, CASL will regulate “commercial electronic messages” (commonly known as “CEMs”) that one may not consider to be “spam” in the traditional sense.
Notable examples of what may be regulated by CASL include: a press release, a newsletter, or any other publication that contains a minor advertisement, promotion or offer. Additionally, a hyperlink in a message to content on a website or the contact information contained in a message will be considered in determining whether a message is a CEM. As a result, it will be more difficult to send updates or relevant factual information to the public.
CASL does not only apply to promotional messages sent by marketing firms or internal marketing departments. It also applies to CEMs sent by employees or representatives of an organization. Importantly, employers will be responsible for their employees, subject to a due diligence defence.
For instance, if an employee sends an email to other employees of an organization regarding a garage sale or family cabin rentals (without knowing them personally), the message would be considered a CEM. An exclusion exists for CEMs sent between employees of the same organization, however, it is limited to messages concerning the activities of the organization, which is not the case here.
It is interesting to consider the implications of CASL on social media. CASL regulates push communications (e.g. private messages sent by a sender), rather than pull communications (e.g. messages placed on a blog and retrieved by a reader).
For example, it is common for Facebook users to utilize the private message feature to send their “friends” invitations to donate to charities (which often include advertisements by a corporate sponsor) or to encourage attendance at a workplace event (such as a restaurant or bar). While one would assume that this type of activity is acceptable between friends (given that Facebook provides privacy restrictions and rules on advertising for its users), it will soon be regulated.
CEMs sent between individuals who have a “personal relationship” (direct, voluntary, two-way communications) are excluded from CASL taking into account any relevant factors such as sharing of interests, experiences, opinions and information evidenced in communications, the frequency of communications, the length of time since the parties communicated or whether the parties have met in person. However, in the case of Facebook users, it is clear that this exclusion requires more than just virtual friendships.
The implications of CASL on LinkedIn communications will largely depend on whether a user has a public profile, publishes any electronic addresses in their contact information, expressly states what type of messages they want to receive or upgrades their account to use InMail.
It is important for organizations and individuals to note that the application of CASL’s exclusions will depend on each particular situation and that some exclusions are partial exclusions from CASL (e.g prescribed content and unsubscribe mechanisms still apply). CASL is wide-reaching with limited and onerous exclusions.