(1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and the message complies with subsection (2).
Subsection (2) reads: The message must be in a form that conforms to the prescribed requirements and must
set out prescribed information that identifies the person who sent the message and the person ”” if different ”” on whose behalf it is sent;
set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and
set out an unsubscribe mechanism in accordance with subsection 11(1).
What Is A Commercial Electronic Message?
In the CASL law, a commercial electronic message is an electronic message that it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity.
This includes an electronic message that:
offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
offers to provide a business, investment or gaming opportunity;
advertises or promotes anything referred to in the two items above;
promotes a person, including the public image of a person, as being a person who does anything referred to in the three things listed above or who intends to do so; or
requests consent to send a commercial electronic message regarding any of the items listed above.
To determine if a message is a commercial electronic message you look at the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message.
An “electronic message” is a message sent by any means of telecommunication, including a text, sound, voice or image message.
But What Is Commercial Activity?
The Canadian Anti Span Legislation states that commercial activity, for an electronic message to be commercial, is
“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”¦”.
Since the law states that it is “any particular transaction”. You must look at each individual electronic message you send to see if it violates the law.
What Is An Electronic Addresses That Are Covered By The Anti Spam Laws?
An “electronic address” means an address used in connection with the transmission of a commercial electronic message to:
an electronic mail account;
any instant messaging account;
a telephone account; or lastly
any similar account.
Exemption To The Canadian Anti Spam Laws
There are exemption to the anti spam laws in Canada. Most deal with the various levels of government, charities and politicians. Due to the complicated nature of the exemptions, it is key to ensure that you discuss with your CASL lawyers whether specific electronic messages and/or items sent to specific individuals are exempted.
Why Is It Important To Comply With The Canadian Anti Spam Laws?
The fines that can be imposed by the new Canadian anti spam laws are up to $200 per commercial electronic message per day up to $1,000,000 per day for individuals and $10,000,000 per day for corporations.
What Are The Chances Of Being Caught Under The CASL Laws?
The new CASL laws bring in more enforcement than seen in any other privacy related legislation. The new laws involve three federal government regulatory organizations and, once fully enacted, the ability for private individuals to sue an individual or company for sending them messages that violate the law. This means that any person in Canada may be a vehicle for enforcing this legislation.
Getting Canadian Anti Spam Legislation Help You Need
Since due diligence is an absolute defense to violations of the CASL laws, it is extremely important that you act diligently. Our CASL lawyers can help with:
CASL is a Canadian federal law. This means that our lawyers can assist businesses across Canada. The Lawyers at Kahane Law Office can help with your CASL legal needs including dealing with commercial electronic message requirements. CONNECT NOW.We can be reached toll-free at 1-877-225-8817 (or 403-225-8810 locally in Calgary, Alberta), or email us directly here.