Canada was the only G8 country without specific anti-spam legislation until the December 2010 adoption of Bill C-28 (commonly referred to as Canada’s Anti-Spam Legislation or CASL). CASL introduced new stringent anti-spam measures that, when they come into force, will have a significant impact on the electronic communication practices of companies operating in the Canadian marketplace.
Designed as one of the most stringent anti-spam regimes in the world, the legislation imposes significant restrictions on the use of commercial electronic messages which include not only email, but also text messages, instant messages and other messages sent from similar accounts (likely including some forms of social media messaging). Further, CASL has extremely broad reach, as the provisions regarding electronic messages apply if a computer system located in Canada is used to send or access the electronic message.
The opt-in consent must be express and the request for consent must meet further form and content requirements, unless one of the limited exceptions can be met. For example, consent can be implied where there is an existing business relationship (such as where a consumer has made a purchase from the sender within the past two years) or an existing non-business relationship (such as membership in a club or volunteer work) between the sender and the recipient. Consent can also be implied where the recipient has conspicuously published his or her address and has not indicated that he or she does not wish to receive unsolicited CEMs, or where the recipient has disclosed his or her address to the sender and has not indicated that he or she does not wish to receive unsolicited CEMs, provided that the CEM must be relevant to the person’s business role.
There are certain limited instances in which CEMs are exempt from the requirement for consent altogether, including instances in which a business sends the CEM in response to a request for a quote, to confirm or complete an existing transaction, or to provide safety, warranty, subscription or employment information. Such messages must still meet the form and content requirements.