Canada's Anti-Spam Law ("CASL") is aimed at curbing the proliferation of unwanted, bulk electronic messages (commonly referred to as "spam" or "junk mail"). It does not stop there though. While the legislation is effective in capturing both traditional spam and junk mail, it also regulates all "commercial electronic messages", generally known as CEMs.
A CEM is a message sent by any means of telecommunication (e.g. text, sound, voice or image) to an electronic address (e.g. email account, instant messaging account or telephone account) if one of its purposes (even a minor purpose) is to encourage participation in a "commercial activity." This may even include communications across social media platforms.
A commercial activity is broadly defined as a transaction, act or conduct of a commercial character (regardless of expectation of profit), including an advertisement, promotion or offer for the purchase, sale, or lease of goods, services or land, or a business, investment or gaming opportunity, or the promotion of a person who does anything related to those commercial activities.
As such, CASL's breadth has strong implications for organizations or individuals sending almost any kind of electronic message.
Nonetheless, there are exemptions for certain kinds of CEMs, such as CEMs sent by a political party or organization aimed at soliciting a contribution under the Canada Elections Act, CEMs sent by a registered charity aimed at raising funds for the charity, or CEMs sent within an organization concerning internal activities.
Importantly, if the content of an email is not commercial in nature or is exempted (e.g. a survey, newsletter, or a request for political contributions or charitable donations), but the email contains a hyperlink to a corporate sponsor's website, then the email may be considered a CEM. In all cases, the purpose of an electronic message will be considered as a whole; taking into account all content, hyperlinks or contact information within the message.
In coming weeks we will provide some examples of messages that you might not think are CEMs but are nevertheless caught by the legislation.
CASL will not allow anyone to hide under the guise of an exemption or non-commercial purpose. Furthermore, effective July 1, 2014, any message aimed at obtaining consent to send CEMs will be considered a CEM.
All organizations and individuals uncertain as to whether their electronic messages are considered CEMs, should mitigate risk by complying with CASL and, in particular, its unsubscribe mechanisms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
