It’s Monday morning at 7:18 a.m.: you log into Gmail, and your account is jammed because it’s been a couple of days since you’ve really checked it. Between your “real” emails, your social emails, and those (dreaded) ‘promotional’ emails, you have 120+ canned emails clambering for a share of your wallet. How did all of these companies get your email address? Well, you did subscribe to that online magazine when you bought your mom that Pinterest-worthy platter from Etsy for Mother’s Day, and you also checked some kind of box when you joined that urban bike organization (why again?).
If you’re anything like me, you’ll delete the promotional emails you have no desire to further investigate, which is, realistically, most of them. But this takes time. What if there was some sort of rule that regulated who could send you these potentially-for-profit emails? Surprise! There is.
Enter the Canadian Anti-Spam Law (CASL), which was enacted on July 1, 2014 and was supposed to regulate spam. Shouldn’t the contents of your inbox be dwindling three years later? But they haven’t. Why not?
Well, CASL does allow spam to be sent, but only to recipients who have provided express or implied consent to receive the messages. The Act refers to spam as “Commercial Electronic Messages” (or CEMs), which are any form of two-way electronic communication with a commercial purpose. I’m just going to keep calling it spam.
So, according to CASL, spam would include a text, an email, a Facebook message, and a BBM (if you’re still sending those). Spam would not include a tweet or a blog (because they are not two way communication sent to specific electronic addresses), or a telephone call (because CASL explicitly excludes calls). What about Snapchat? If you are sending a Snap directly to another person (as opposed to posting it to Your Story), and the Snap is commercial in nature (you are trying to sell a gizmo you just designed), that is likely spam.
Where do you draw the line for defining whether a CEM is commercial in nature? An express sales proposition would be an obvious clue but what if you sent a cold email to someone you admire (after much deliberation and with your eyes shut as you hit the send button) to go for coffee and discuss a business opportunity? That one’s a bit trickier: we don’t know the answer yet.
But you can send someone spam if they consent, either expressly or implicitly. So what (in this context) is consent?
Express consent is what it sounds like: a statement in writing from you agreeing to receive spam from the sender. Implied consent is less rigid: you have implicitly consented to receiving spam if you have entered into a contract with, purchased something from, made an investment with, volunteered for or donated money to some organization. A bit overwhelming, no?
I see a lightbulb above your head because you are remembering that you checked a box indicating that you want to receive emails from that specialty soap maker, that Halloween costume site that sold you a last-minute disguise, and the non-profit you donated to for your friend’s charity bike ride.
And… right about now is when you realize that you’ve bought way too much stuff online, subscribed for way too much content, etc. We won’t say you’ve made too many charitable donations because charity is good. Keep doing that.
We can say that this spam stuff can be tricky and the law in this area is still developing: CASL is currently under parliamentary review. But you can call us if you have any questions. We’re always happy to help out.
Sanjay is a Co-Founder and Lawyer at Spark LLP. Sanjay spent most of his career as in-house counsel at Bell Canada and CIBC before escaping to work instead with dynamic and innovative businesses, helping them to build interesting and exciting solutions for their customers. Sanjay travels a lot, so is the Chief Location Scout for Spark LLP.