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5 Things to Know about the New Canadian Anti-Spam Legislation

Posted by Michael Fitch on Sep 2, 2014 4:26:31 PM

This blog is designed to act as a high-level resource for your CASL compliance essentials, but does not constitute legal advice. For any questions or concerns, we encourage you to meet with your legal team or contact an attorney who is familiar with this legislation.

The Government of Canada is getting even more serious about the protection of Canadian citizens when it comes to online privacy. Recently, the Canadian Anti-Spam Legislation (CASL) was passed to ensure that companies honor and respect individuals’ communication preferences, while still remaining competitive in the global marketplace. For companies that use electronic channels to promote or market their organizations, these new laws may come into play and everyone is officially “on the clock” to abide by these new regulations.

We’ve identified five crucial elements of CASL that you need to know before communicating with Canadian contacts.

1. “Commercial Electronic Messages” are the target communication

CASL compliance affects commercial electronic messages, or CEMs, which expand much further than traditional email. CEMs can include any electronic message that includes text, sound, voice or image and is sent to an electronic address, including email, instant message systems and telephone, among others.

CEMs are in breach of CASL compliance when they include, but are not limited to, spam, malware, network re-routing, installation of a computer program, address harvesting or if any part of the message is false or misleading. CEMs must also include a clear identification of the sender, including anyone on whose behalf you are sending the message, a clear and prominent message or website link, a mailing address, phone number, email address or web address and a visible option to unsubscribe.

2. Consent is the keyword
CEMs can safely be sent if you have the express or implied consent of the recipient, such as opting in to a specific communications campaign, or if the recipient has published their contact information online. Consent also includes an existing, active (business or non-business) relationship with a customer, client, associate or supplier from the past two years. There are also several transactional forms of consent, so meet with your legal team to learn the specifics. Communicators will also need to be able to provide a record of consent. Be wary, an electronic message requesting consent is also considered a CEM.
Under no circumstances can automated address generation or collecting be used.
3.      Breaching CASL regulations can result in hefty consequences
Penalties for violating CASL laws can result in a number of actions, including the maximum penalty of a $1 million fine for individuals or a $10 million fine for businesses per violation. Violators will be reported to the Canadian Radio-television and Telecommunications Commission (CRTC), where the CRTC will judge the nature of the violation with a range of enforcement tools at hand. There will be no automatic penalties for violating CASL, and will instead be judged on a case-by-case basis.

4.      CASL is more demanding than existing CAN-SPAM laws
One primary difference between existing CAN-SPAM laws is the treatment of “opt out” communications and the new “opt in” requirement. CAN-SPAM allowed communicators to send CEMs as long as there was an “opt out” capability. CASL laws ensure that all recipients of the CEM have voluntarily opted in to receive it. Penalties for CASL violations are much higher than CAN-SPAM, and the regulations are more defined.

5.      If you are not currently CASL-compliant, you can take the necessary steps to get there
While the CASL legislation went into effect on July 1, 2014, there will be a three-year transition period for businesses to obtain express consent in order to continue CEM distribution. Recipients can withdraw consent at any time, so it’s vital for companies to properly maintain consistent, consolidated contact lists. Ensure that you are properly identifying yourself and providing an opportunity to opt-out of each CEM. During this three-year transition period, companies can send CEMs to recipients with at least implied consent, but by June 30, 2017, must obtain express consent for all Canadian contacts.
Remember, it is your responsibility to take the necessary actions to comply. For more information, please visit the official CASL website.
This blog contains legal information, which is not the same as legal advice. Please consult your own legal counsel or an attorney for legal advice, and use

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