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What you need to know about Canada’s Anti-Spam Legislation (CASL)

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Canada’s Anti-Spam Legislation (CASL)
Key Terms

Commercial Electronic Message (CEM)

CEM is defined as any message sent by telecommunication which includes emails sent to an email account, text messages sent to an instant messaging or telephone account, voicemail, social media, etc. for the purpose of getting the recipient to participate in a commercial activity.

Commercial Activity

Means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.

Consent

Under CASL, CEMs cannot be sent (or caused or permitted to be sent) unless the recipient expressly or implicitly consents to receiving the message. The Act sets out two types of consent: express and implied.

Electronic Message

Means a message sent by any means of telecommunication, including a text, sound, voice or image message.

Employee/Worker

A person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program. The terms employee and worker are both used, depending on the context.

Employer

A person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.

Personal Relationship

CASL states that there is implied consent for the sending of a CEM if there is a “personal relationship.” The regulations define this as “the relationship, other than in relation to a commercial activity, between an individual who sends the message and the individual to whom the message is sent, if they have had an in-person meeting and, within the previous two years, a two-way communication.”

Spam

Generally refers to the use of electronic messaging systems to send unsolicited, bulk messages. Spam messages may contain deceptive content, support illegal activities or can also be used to deliver electronic threats such as spyware and viruses.

Supervisor

A person who has charge of a workplace or authority over a worker. Generally, this would include those with a position title such as Director, Manager or Supervisor, as well as any other management type position, or those in a temporary supervisory position.

Unsubscribe Mechanism

This is a feature that allows the person receiving the CEM to easily, quickly and at no cost to them, indicate that they no longer wish to receive any commercial electronic messages or some class of electronic messages from the sender.

Workplace

Any building or part of a building in which one or more workers work, including lunchrooms, changing and lounge areas, and any vehicle or conveyance, or any area including outside worksites/remote locations, where workers engage in business and/or social activities.

Existing Business Relationship

An existing business relationship between the sender of the CEM and the recipient will be found if, within the previous two years the recipient has:

  • purchased, leased or bartered a product, goods, services, land or an interest in land from the sender;
  • accepted a business, investment or gaming opportunity offered by the sender;
  • entered into a written contract or made inquiries about other matters with the sender for another matter not listed above;
  • within the previous six months, made an inquiry or an application about any of the matters listed above.


The existing business relationship is renewed with each transaction, so that the two-year existing business relationship starts over.

Implied
Consent

There are three categories of implied consent. Consent will be implied if:

·  there is an existing business relationship between the sender and the recipient;

·  there is an existing non-business relationship between the sender and the recipient; or

·  the recipient has , through “conspicuous disclosure or publication” disclosed their email address without stating that they do not want to receive a commercial email. Publication of an email on a business card or a website fit into this category.

Express
Consent

Express consent means that a recipient has voluntarily agreed to receive a CEM and this consent is documented. Under CASL, a person who seeks express consent to send a CEM must:

 

a) state clearly and simply the purpose or purposes for which the consent is being sought;

b) provide information that identifies the person seeking consent and, identifies any third party recipient;

c) give contact information for (about) the person sending the CEM, such as a mailing address and a telephone number to an agent or voice mailbox, or an email or web address of the sender or person on whose behalf the message is sent; and

d) state that consent can be withdrawn at any time.