On July 1, 2017 Canada turns 150 years old. Canadians everywhere will be commemorating a century-and-a-half of maple leaves, beavers, Canadian geese, maple syrup, Molson Canadian, hockey, poutine, and Bob & Doug Mackenzie. But something else distinctly Canadian is happening on July 1, 2017: the transition period for Canada’s Anti-Spam Law (CASL) is coming to an end. [Cue fireworks-like oohs and ahhs.]
The basics of CASL
We’ve all experienced the immense frustration caused by an inbox clogged with spam. Daily, weekly or monthly emails regarding discounts on paleo cookbooks for your dog, or buy-one-get-one-free offers for pour-over coffee apparatus can be a pain, unless you really want to get them.
Enter the Government of Canada. In response to these sometimes-annoying messages, the government enacted CASL on July 1st, 2014. The law sets out the general rule that individuals or companies cannot send you unsolicited emails for commercial purposes (called CEMs or commercial electronic messages) unless they have your express or implied consent (I get into what exactly is consent in a later post).
So, what happens on July 1st?
Well, other than you enjoying a long weekend BBQing, lighting fireworks, and waving a Canadian flag, the CASL transition period expires on July 1, 2017 (Happy 150, Canada!).
When CASL took effect on July 1, 2014, the government knew that businesses would need some time to get ready, and gave them a three-year hall pass for sending spam where implied consent was based on the existence of a business relationship with the recipient at any point in time. Did you sell Jim a piece of hardware 4 years ago and want to inform him about your latest model? No problem… during the transition period.
Starting July 1, 2017 (in general) implied consent can be established where a relationship exists under the following circumstances:
- If you’ve sold the recipient a product or service within the last 2 years
- If the recipient has asked you about your products or services within the last 6 months;
- If you have made a donation to or volunteered for a charity or political party within the last 2 years; or
- If you are an existing member of a club or association.
What can I do now?
- The most direct way to comply with CASL is to obtain express consent from your customers, prospects and contacts. This is not as easy as it sounds. CASL requires express consent to be given in writing, and to clearly state that the recipient agrees to receive spam from the sender.
- There must be an unsubscribe link mechanism contained in each message and each message must clearly identify the sender, including the business and two ways to contact that sender. Express consent does not expire, but recipients can opt out by unsubscribing.
- Once the implied consent provisions come into full effect on July 1, 2017, businesses should have a system in place to monitor the expiry of their customers’ implied consents, and seek the express consent of those who have yet to provide it.
Remember, the sender of the message is the one that has to prove that it had the necessary consent from message recipients (or that some other exemption applied… and there are exemptions, which will be explained in our coming post about consent under CASL).
Still confused? You’re not alone. This stuff is complicated and the implications of not complying can be pretty serious. We are always happy to walk you through CASL as it relates to your business, to help you assess your risk and advise you on what is required in the post-transition period.
Then you can get back to planning your Canada Day BBQ.
Samantha Schreiber
Samantha was the first employee lawyer to join Spark LLP, joining the firm in early 2017. She assisted with the firm’s litigation matters for two years before deciding to leave and join a mid-sized Bay Street firm.
