Canada’s Anti-Spam Legislation (CASL) restricts the ability of organizations to send commercial electronic messages without the consent of the recipient.

A critical step in the decision tree is, therefore, to determine what constitutes a “commercial electronic message”. Here’s the definition of a “commercial electronic message” in subsection 1(2) of CASL:

(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to 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, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

(b) offers to provide a business, investment or gaming opportunity;

(c) advertises or promotes anything referred to in paragraph (a) or (b); or

(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.

When designing a compliance policy, care must be taken not to consider the items listed in (a) to (d) as being exhaustive. Instead, the critical part of the definition is the portion that is bolded –that is, “it would be reasonable to conclude [that the message] has as its purpose, or one of its purposes, to encourage participation in a commercial activity”.

“Commercial activity” is broadly, albeit ambiguously defined in subsection 1(1). A commercial activity does not require profit-making or even a profit-making motive. It involves any transaction, act or conduct or regular course of conduct that is of a “commercial character”.

The difficulty for organizations, particularly non-profit organizations, is that determining what is of a “commercial character” is not straightforward. Indeed, this seems to be acknowledged by the need to expressly exclude such activities as law enforcement, public safety, the protection of Canada and the conduct of international affairs or the defence of Canada.

Historically, Canadian courts have interpreted “commerce” as any activity involving the exchange for money, or by barter, of products. The debate has been whether a one-off transaction would be considered commerce. CASL seems to suggest that even a one-off transaction could be commerce, given the reference to a “particular” transaction, act or conduct. In the context of CASL, any electronic message that “encourages participation” in a commercial activity will be a CEM.

If a broad scope is given to the meaning of “commercial character”, the definition may sweep in many types of messages that would not be commonly understood as such. For many organizations, branding is critical. Emails will frequently include at least some form of information to invite the reader to visit a website for a hyper-link or announce or promote a product or service. Once CASL comes into force, it will be important for organizations to have strict controls over the content of electronic messages and approvals for content. Choices may need to be made between promotional “add-ons” and ensuring consent is obtained or the organization has a viable exception to consent.