July 31, 2017
Revisting anti-spam legislation
BY ROBERT KENNALEY
Prior to July 1, 2014, you were probably inundated with requests to provide your consent to receiving business-related email communications. On that date, Canada’s Anti-Spam Legislation (CASL) came into force — in relation to “commercial electronic messages,” including emails, texts, voice mails and other electronic business messages. Most of us continue to receive what appear to be unsolicited commercial emails and are by now quite familiar with the “unsubscribe” option that accompanies them. Many of us also use email, of course, to brand and promote our businesses.On July 1, 2017, a “private right of action” comes into force, allowing anyone who has received improperly sent electronic messages to sue the sender for damages. In addition, it will allow class action law suits to be commenced; scaring business people, and their lawyers, who are concerned that class action lawyers may be lining up to commence actions. This causes us to think a refresher on Canada’s Anti-Spam legislation is in order.
Canada’s Anti-Spam Legislation is actually named (believe it or not) “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.” Because its long name does not even mention “spam” or “e-mail,” it can be hard to find on-line. Find it by plugging some or all of the name into the search window at www.canlii.org.
Unlike many pieces of legislation, CASL is actually fairly easy to read as it relates to your anti-spam obligations. With private actions looming, if you send emails as part of your business, it is worth a read. We will summarize the legislative framework below — but must confirm that this is only a summary.
Under CASL, a commercial electronic message is essentially an electronic message (such as a email, text or voice mail) that encourages participation in a commercial activity. It includes any electronic message that offers to purchase, sell, barter or lease a product, good, service, land or an interest in land, that offers to provide a business, investment or gaming opportunity or that advertises or promotes anything or anyone in this regard.
Under the Act, you cannot send a commercial electronic message unless the recipient has either expressly or impliedly consented to its receipt. Even where the consent has been obtained, the message must identity the sender, along with the person on whose behalf it is sent (if applicable). It must also set out the contact information of the sender and provide an “unsubscribe mechanism.” The contact information must be valid for a minimum of 60 days.
There are exceptions. The above does not generally apply to non-profit and charitable organizations. It also does not apply to a commercial electronic messages sent in personal or family relationships (as defined in the regulations), to messages sent to those engaged in commercial activities about those activities or to messages and circumstances specified in the Act and its Regulations. Such circumstances, for example, include messages which provide information about an item under warranty.
For present purposes, it is important to understand when consent might be implied, so that you can send a commercial electronic message — to market your services, product or brand — without breaching CASL. Consent is implied if there is an existing “business relationship” or “non-business relationship” with the recipient. A “business relationship” is pretty much what you would expect it to be. A non-business relationship arises where, as between the recipient and the sender, a donation or gift has been made, or volunteer work has been performed, in the prior two years. It also arises where the two are involved as, or in, clubs, associations or voluntary organizations.
Consent is also implied where the message is sent to someone about his or her person’s business, role, functions or duties in a business or official capacity and that person has “conspicuously published” or disclosed his or her electronic address without stating that he or she does not wish to receive unsolicited commercial electronic messages. Such consent can be implied, then, if the recipient has disclosed his or her email address on a web-page or on a business card given the sender. Implied consent will expire two years after it has been obtained.
As above, if you sent out an email to market or sell your services or goods, and you have the expressed or implied consent of the recipient to do so, you have to include an “unsubscribe” mechanism in the email. This must enable the recipients to indicate, at no cost to them, that they no longer wish to receive any commercial electronic messages, or any specified class of such messages, from the sender. The mechanism can be the same “electronic means” by which the message was sent (ie: text, email, voice mail) and, if using that means is not practicable, any other electronic means that will enable the person to unsubscribe. It must also specify an electronic address, or link to a web page, where the unsubscribe notice can be given. The recipient must receive confirmation within 10 days that the unsubscribe has been applied. More information is available at www.crtc.gc.ca/eng/internet/anti.htm.
Rob Kennaley practices construction law out of offices in Toronto and Simcoe, Ont. He speaks and writes regularly on construction law issues and can be reached for comment at (416) 700-4142, (519) 426-2577 or at rjk@kennaley.ca.