We’ve all been on the receiving end of daily emails from a retailer we purchased one t-shirt from in 2013 that lasted for a few wears before getting ruined, or a proprietor of wholesale Blu-ray DVDs no longer useable because everything is on Netflix these days. A fitting description of this constant stream of spam prior to July 1, 2014 was “unrelenting.” The Government of Canada agreed, and did something about it.
On July 1, 2014, the Canadian Anti-Spam Law (or CASL) came into effect. If you want to know more about what CASL is, and why you should care, click on that link for our previous post. The essence of CASL is to require businesses to obtain consent (express or implied) from recipients of “Commercial Electronic Messages” (or CEMs) before sending them. CEMs, or spam messages, are two-way communications for a commercial purpose like emails, text messages, BBMs, WhatsApp, Facebook messages, etc. Our previous article also sets out what CASL means by a “commercial purpose” and the problems with the lack of guidance on that term.
The real key to being able to “legally” send commercial emails to your customers is having express or implied consent. So, what is consent, and how do you get it?
Express Consent
CASL requires that Canadians be able to say “yes” or “opt-in” to receiving spam. The most direct and efficient way of opting in is by express consent. Express consent must be given in writing and it must clearly state that individuals and businesses agree to receive commercial messages from the sender for a specific purpose. Express consent does not expire, but recipients can subsequently opt out by unsubscribing.
How do you get express consent? Some of your more practical options are:
- You can ask for it via email (assuming you already have implied consent to send that email – yes, an email asking for express consent is considered a CEM);
- You can build an opt-in mechanism into the registration for your website;
- You can build an opt-in mechanism into the registration for your website;
However you do it, just make sure it is a clear written expression or agreement to receive electronic messages with a commercial purpose.
Implied Consent
Implied consent is a tricky area, and relying on it can be risky. We strongly encourage you to talk to us if you want to send out any commercial messages and rely on implied consent to ensure you are complying with CASL.
Essentially, there are two categories of implied consent: relationships and exemptions.
Relationships
Implied consent exists where business and non-business relationships exist. People who have purchased a product or service from a company, made investments with a company, bartered with a company, or entered into a contract with a company at any time have an existing business relationship with that company. These people have given implied consent to receive commercial messages from those businesses.
A non-business relationship exists if someone has given a gift or a donation, or volunteered with a registered charity, a political party/organization or a candidate for a publicly elected office. Likewise if someone is a member of a club or association, that person has a non-business relationship with that club or association.
Implied consent has time limits, so businesses need to keep track of when they receive the implied consent. Our previous article, Canada’s 150th Birthday Is In Good Company has information on the time limits to be imposed on implied consent starting July 1, 2017.
Exemptions
In certain cases, senders are exempt from the express consent requirement (and automatically create implied consent):
- The “conspicuous publication exemption” allows businesses to send commercial messages to addressed which have been published on a website provided that the message is relevant to the recipient’s business, functions, role or duties. What is relevant is, to some degree, common sense, but it can get a bit fussy, so be very careful here.
- If someone hands you a business card, the “disclosure exemption” allows you to send them CEMs so long as the message relates to that person’s business (again, be careful here), and the person doesn’t say “don’t send me any spam” when he hands over the card (I think I’m going to start doing this just to mess with people).
- You can send an email to your mom asking her to check out your product demo because of the “personal relationship exemption”, but your company cannot (companies cannot have personal relationships, of course). As you might imagine, when the government attempts to define what is and what is not a personal relationship, things get a bit complicated so again, like with the other exemptions, be careful and call us if you have any questions.
- The “referral exemption” allows you to send ONE email to the someone who has been referred to you. One, and one only, though, so make sure that you ask for express consent to continue communicating with that person.
Whether you use it to market a product or service, alert your customers to a discount, or impart wisdom on a particular subject matter related to your business, you need to understand CASL and its consent requirements. The consequences of not complying with CASL can be significant, particularly because, in addition to the CRTC knocking at your door, there are provisions (which are not yet in force) allowing people to sue you for $200 per email sent without consent.
As we’ve said a few times in this and other articles, this stuff can be a bit tricky. We’re more than happy to chat with you about it, to make sure you understand how it applies in your particular circumstances, and to ensure that your email marketing campaign complies with the law. Give us a shout.
Sanjay Kutty
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.
