Download Canada`s New Anti-Spam Legislation and How it Will Affect Email

Canada’s New Anti-Spam Legislation and How
it Will Affect Email Marketing Practices
Tuesday, April 23, 2013
Utilities, energy providers, trade associations and other entities participating in or
supporting the energy sector will be impacted by Canada’s new Anti-Spam
Legislation (known as “CASL” for short). CASL affects anybody who sends
commercial or promotional messages by electronic means, such as email and text
message. CASL was enacted in 2010 but has yet to come into force. The CRTC, the
agency responsible for overseeing CASL, has yet to set a date, but in recent meetings
they indicate that CASL will come into force sometime in 2013. This means
businesses and organizations need to act now to get their email marketing strategies
ready for CASL.
Although CASL highlights “spam”, the law is drafted so that it applies to a much broader
array of messages than would normally be regarded as spam. CASL applies to any “commercial electronic message”, meaning a message with a commercial purpose,
regardless of whom it is sent to or how many messages are sent. Technically, a single email
sent to a person that has a commercial purpose falls under CASL. This means that CASL
can apply to emails that, among other things:

provide market information or updates;

highlight legal, regulatory changes or requirements;

advertise a new product or service;

invite the recipient to join an organization or attend a conference; or

solicit parties to respond to procurements.
Since CASL applies to all messages that have the purpose of encouraging participation in a
commercial activity, whether that is its primary purpose or simply one of its purposes, emails
will need to be evaluated on a case-by-case basis to determine whether they are subject to
CASL.
The key requirements of CASL are:
1. Consent – the recipient of the email must have given his or her consent to receive
commercial types of emails. The consent can be expressly given, meaning the
recipient signed a document or checked a box on a form, indicating his or her
consent to receiving these kinds of messages from the sender. The consent must be
specific about the type of emails that will be sent - e.g., marketing emails, product
updates, promotions, and/or newsletters – and cannot be buried in the terms and
conditions or privacy policy. Consent can be obtained orally, but adequate records
should be kept to demonstrate that consent was given.
There are limited circumstances where the recipient’s consent can be implied (in
other words, he or she is considered to have given consent even though they have
not signed anything or checked a box). Implied consent applies to customers who
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have purchased or leased a product or service from the sender in the past 2 years,
and to customers with whom the sender has a contract that is ongoing or has
expired within the past 2 years. In the trade association context, implied consent
applies to messages sent by an association or voluntary organization to its current
members or those who had been members in the past 2 years.
Generally speaking, this means that consent can be implied for commercial emails
that are sent to an organization’s existing customer or member base. The emails
must still comply with the other requirements of CASL, as described below.
However, implied consent can expire if the recipient’s relationship with the sender
comes to an end, and it may be a challenge for organizations to keep track of who is
an existing customer or member and when the 2-year term expires. As such, it is
recommended to obtain express consent since that is valid until the recipient chooses to unsubscribe.
2. Content of the Message – the email must contain the name of the sender and
contact information (address and telephone number, email or website). If the sender
is sending the email on behalf of a third party (for example, a marketing agency is
sending an email blast on behalf of its client), the sender must identify the person on
whose behalf the message is being sent.
3. Unsubscribe – the email must contain an effective, no-cost mechanism that allows
the recipient to unsubscribe from receiving future commercial messages.
It is important to note that the consent required under CASL is separate and different from
the consent required under other federal and provincial freedom of information/privacy laws,
such as PIPEDA, FIPPA or MFIPPA. CASL requires recipients to specifically consent to
receiving marketing or promotional emails. The consent cannot be combined with the
consent to provide personal information, or the acceptance of general terms of use or a
privacy policy. Furthermore, if users are asked to check a box to indicate consent, the box
cannot be pre-checked and the user must actively check the box to indicate consent to
receive marketing emails.
There are some exemptions to CASL, including:

Emails sent to confirm a transaction that the recipient entered into with the sender

Emails responding to a request for a quote or estimate

Emails that solely provide warranty or product recall information, or other factual
information about the use of a product or service (e.g., bill payment reminders)

Emails sent between people in a family or other personal relationship
Given the broad scope of CASL, companies and other entities involved in the energy sector
need to examine their email marketing practices and ask themselves:

What kinds of commercial emails do you send? Who are they sent to?

Have you obtained express consents from any of the recipients?

Do you use or buy distribution lists from marketing companies, third-party websites
or other sources?

Do your emails have an unsubscribe option that works?
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CASL has implications for every business and organization that uses email or text messages
to reach customers or potential customers. It is important to develop a strategy to comply
with CASL before it comes into force.
AUTHOR
Shane Freitag T 416.367.6137
[email protected]
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