Over the next few weeks, we will be looking at a number of things to consider in light of Canada's anti-spam legislation ("CASL"), the federal anti-spam legislation that for the most part comes into force on July 1, 2014. (For a general overview on CASL, see Adrian Liu’s blog posting at "Countdown to Canada's Anti-Spam Law: Will You Be Ready to Comply by July 1, 2014?").

CASL prohibits the sending of commercial electronic messages without consent and without prescribed content. Today we will look at what constitutes a “commercial electronic message” or CEM.

Text, image, sound and voice messages are caught within the definition of an “electronic message” – it is not just emails.   In determining whether an electronic message is a “commercial electronic message”, one needs to consider the content of the message, the hyperlinks in the message to content on a website, and the contact information contained in the message.  If it would be reasonable to conclude that at least one of its purposes is to encourage participation in a commercial activity, then it would be viewed as a commercial electronic message.  The definition of “commercial activity” basically provides that there is no need for the motive to be for-profit – thus the activities of not-for-profits and charities can be caught.   So, when considering if what you or your organization is doing would be caught by the legislation, first look at whether it is a commercial electronic message. Sending a newsletter by mail won’t be caught. Sending a newsletter by email, when the newsletter includes promotional messaging, likely will.