Are You Ready For the Canadian Spam Legislation?

by BakerHostetler

The majority of the Canadian Spam Legislation (CASL) comes into force o July 1, 2014. This includes Section 6, which relates to the sending of commercial electronic messages (CEMs). Starting today, businesses must obtain opt-in consent before sending CEMs that are accessed by computer systems in Canada. Compliance will be complicated in situations where a business only has an email address for a customer on its mailing list and does not know whether the customer is accessing the email through a computer system in Canada. Businesses may be liable for violations regardless of whether they know they are sending an email to a Canadian computer system without first obtaining the necessary consent.

Some of the provisions of the CASL will be familiar to U.S. businesses that have experience complying with the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act—popularly known as CAN-SPAM. As with CAN-SPAM, the CASL has requirements regarding identifying the sender of CEMs and for permitting recipients to opt out of future messages. Where the CASL significantly differs from CAN-SPAM is in the requirement of opt-in consent for CEMs. Although the CASL gives flexibility as to how opt-in consent may be obtained, the burden is on the sender to prove the consent. “Pre-checked” opt-in boxes on websites are not considered sufficient proof of consent under the CASL.

Fortunately, the CASL includes a transitional provision that relates to the consent requirement. Consent to send CEMs is implied for three years (to July 1, 2017) where there is an existing business or nonbusiness relationship that includes the communication of CEMs. One-way communication for CEMs (e.g., where a business sends CEMs to a consumer with whom it has an existing relationship) is acceptable during this three-year period. Note, however, that this transitional period of implied consent will end earlier if the recipient indicates that he or she no longer consents to receiving CEMs. Furthermore, this “existing business relationship” must have been created before July 1, 2014, in order for a business to take advantage of this three-year transitional period. Businesses may take advantage of this transitional period to seek express consent for the continued sending of CEMs.

Express consent does not expire after a certain period of time has passed. If a business has obtained valid express consent before or after July 1, 2014, then that express consent does not expire, unless and until the recipient withdraws his or her consent.

Although the CASL does not apply to messages sent to individuals with whom the sender has a personal relationship, a “personal relationship” requires that the real identity of the individual who alleges a personal relationship is known by the other individual involved in such a relationship (as opposed to instances where a virtual identity or an alias is used). Using social media or sharing the same network does not necessarily reveal a personal relationship between individuals. The mere use of buttons available on social media websites — such as clicking “like,” voting for or against a link or post, accepting someone as a “friend,” or clicking “follow” — will generally be insufficient to constitute a personal relationship. Also, a personal relationship is one that exists between individuals. Legal entities, such as corporations, cannot have a personal relationship. Someone who sends a CEM on behalf of a corporation may not claim to have a personal relationship with the recipient.

If a business commits a violation under any subsection of Section 6 of the CASL (the area that governs CEMs), then the business may be required to pay an administrative monetary penalty of up to $10 million. Directors, officers, and agents of a corporation can be liable if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation.

BakerHostetler is not authorized to practice law in Canada. This summary of the CASL is being provided for informational purposes.


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.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.