U.S. companies that send marketing e-mails to customers in Canada, have been long awaiting further news and guidance about Canada’s Anti-Spam Legislation (CASL), which was passed in December of 2010 but has not yet gone into effect. The timing of enforcement has been delayed several times over the past few years. It is currently anticipated that Industry Canada, the national department of industry, will prepare final regulations to be put into effect, after a notice and comment period, in early 2013.

CASL, which is broader and more restrictive than its U.S. counterpart CAN-SPAM, has left business owners wondering if and how to modify their marketing practices in order to comply with Canada’s new regulations. While CAN-SPAM focuses on commercial emails, CASL broadly covers a variety of commercial electronic messages (CEMs) including text messages and messages sent over social media. Perhaps most notably, CASL require recipients of CEMs to “opt in” either expressly or impliedly before a business can send messages to them, something not required by CAN-SPAM.

Last month, the Canadian Radio-television and Telecommunications Commission (CRTC) finally provided some initial guidelines on obtaining express consent. Highlights include the following:

  • Consent generally requires an affirmative action by the recipient, like typing an email address into a field or checking a box to receive emails. Express consent cannot be obtained through opt-out consent mechanisms. Any option to check a “receive emails” box should not be checked by default.
  • Requests for consent cannot be bundled with requests for consent to general terms and conditions of use or sale.
  • Once express consent is received, confirmation of this receipt should be sent to the user.
  • An unsubscribe mechanism must be quick and easy to use. Acceptable methods include a link in an email leading to a webpage where the user can unsubscribe, or in the case of an SMS message, the user should have the choice between replying with the word “STOP” or “Unsubscribe” and clicking on a link leading to a webpage where the user can unsubscribe.
  • Separate consent must be obtained for each regulated act. For example, a user must be able to give consent for installation of a computer program while refusing to grant consent for receiving CEMs.

While the guidelines provide direction on how to obtain express consent from recipients, they do not give much insight into how the law will view implied consent. CASL recognizes implied consent by consumers who have existing business relationships with a company if have purchased from the company in the past two years or have sent an inquiry to the company.

Compliance with the opt-in provisions of CASL would conceivably require companies to audit their marketing lists to determine which customers qualify as existing customers (i.e. have given implied consent) and which customers must be contacted in order to obtain their express consent before further marketing e-mails can be sent to them.