Storming the CASL - Your email to Canada may now be against the law


Canada’s Anti-Spam Legislation (CASL) took effect July 1, 2014. CASL prohibits sending commercial electronic messages (CEMs) such as email, to parties in Canada without consent. If you don’t have consent or fall under one of the exceptions to the consent requirement, you may want to consider resorting to the postal service to obtain consent to send CEMs to Canadians. Even if you have consent, if challenged, you need to be able to prove it. Practically speaking, this puts an end to “cold” emailing to Canadians.
What is the risk?
If you or your organization is found to have sent non-compliant electronic messages, it can mean up to a $1 million dollar fine for individuals and $10 million dollars for corporations. Officers, directors and agents of a corporation can be liable if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation. Starting in 2017, recipients of the messages can also sue for $200 for each message, once the private right of action provisions comes into force. 
What type of electronic messages does it apply to?
CASL applies, if any element of the electronic message encourages participation in a commercial activity. The good news is that once express consent has been granted, it is valid until it is revoked – the situation becomes trickier if you’re relying on implied consent in a pre-existing business relationship as time limits apply to the implied consent. 
Does it apply to a message sent from the U.S.?
CASL’s provisions apply to any CEM where a computer system located “in Canada is used to send or access the electronic message”.  It applies to emails, instant messages, SMS messages and messages sent to “similar accounts”. This means that the form, content and unsubscribe requirements established by CASL apply to foreign messages including those sent by foreign organizations to Canadian recipients. 
What is Express Consent?
Express consent can be obtained electronically, verbally or in written format, but to be valid, the recipient needs to understand what the consent is for, be provided with the sender’s contact information and be informed that they can withdraw their consent at any time. Implied consent comes into play when two parties already have an existing business relationship.  
Does CASL apply to all Electronic Messages?
CASL’s provisions permit certain messages to be sent without full CASL compliance. These include for example:
 <>······If in doubt – resort to seeking consent using postal services.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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