Canada’s Anti-Spam Legislation (CASL) and your Commercial Electronic Messages

This legislation essentially requires businesses to get consent to send someone a “commercial electronic message”. Unless a business can fit into a few limited exceptions, the sending of such messages is prohibited. 

What’s a “commercial electronic message”?

The definition in the Act is complex but in its simplest forms a commercial electronic message is a text, email, instant message or voice message that contains content of a commercial nature. Specifically, it’s a message offering to buy, sell or lease any product, goods, services, or land, or offering another business opportunity. In fact, a commercial electronic message asking for consent to send a commercial electronic message is considered a commercial electronic message and subject to the requirements in the Act.

When can you send commercial electronic messages? 

Without Consent:

As long as you are otherwise compliant with the Act, you can send commercial electronic messages without consent:

• if you’re replying to a request for a quote or estimate from the recipient, or
• as a result or a business referral (but just one message without consent), or
• if the message is to facilitate or complete a commercial transaction that the recipient agreed to enter, or provides warranty, product recall, safety or security information about a product or service that the recipient has used or purchased. 

There are also a few other more specific exceptions including messages enquiring about the recipient’s business activity or pursuant to an ongoing business, employment, or familial relationship between the parties.

Interestingly, voice recordings sent to a telephone account are also excluded from the restrictions.

With Consent:

You can also send electronic commercial messages if you have express consent (explicit consent to send the recipient electronic commercial messages), or implied consent.

In general a business has someone’s implied consent to send an electronic commercial message if:

• there is an existing contract in place, or there was one that expired no more than 2 years ago, or
• there is an existing business relationship such that they’ve bought or leased some product, good, service or land, or accepted a business, investment or gaming opportunity, within the last 2 years, or
• within the last 6 months, they’ve submitted an enquiry or application regarding the purchase or lease of products, goods, services or land, or your business, investment, or gaming opportunity.
• You can also contact people at their published contact information if it relates and is relevant to them in their business role or official capacity and they haven’t also posted that they don’t want to receive unsolicited commercial electronic messages. The same applies if they’ve disclosed their contact information to you (for example, by giving you a business card).  

If you’re a club, association, non-profit, charity or political organization, you might fit into some exemptions as well. 

What are the requirements for the messages?

While the Act and Regulations are detailed, generally your commercial electronic message needs to (i) identify who the message is from, (ii) how to contact them, and (iii) set out a mechanism to unsubscribe from future messages.

The onus of proving that a message was sent with consent of the recipient is on the sender, so it’s important to keep good records of your CASL compliance efforts.

An easy work around in some cases is to develop a social media following and then publicly post whatever message you want to get out. It’s direct messages rather than public announcements that are covered by CASL. 

The information provided in this overview is general in nature and not intended to provide specific guidance or advice as each situation is different.  If you would like more information or to learn how CASL may apply to your specific situation, please contact a member of Patterson Law’s Business Team.