U.S. companies may soon risk litigation for failing to comply with the provisions of Canada's anti-spam law (CASL) in their electronic communications to Canadian consumers. While this anti-spam law has been in force since 2014, its provisions permitting a private right of action become effective on July 1, 2017. Even companies with no operations in Canada are at risk, and experts predict that class actions under CASL will proliferate starting July 1, 2017, because the law is drafted so broadly. Specifically, CASL's private right of action provision confers standing to any person who alleges that he or she is "affected by an act or omission" of the law that targets electronic communications to Canadians, including messages to email addresses and social networking accounts, and text messages sent to a cell phone.
CASL mandates a detailed consent procedure for nearly all electronic messages sent with a commercial purpose, with a few specific exemptions. Subject to those exemptions, CASL prohibits sending, or causing to send, an electronic message for a commercial purpose unless "the person to whom the message is sent has consented to receiving it, whether the consent is express or implied." CASL defines "implied consent" as present if the "person who sends the message" has an "existing business relationship..." with the recipient. The law further defines what qualifies as an "existing business relationship," and includes when a recipient has purchased a product from the sender within a two-year period.
Under CASL, commercial electronic messages to Canadian citizens must conform to certain requirements. All commercial electronic communications must
(a) set out prescribed information that identifies the person who sent the message and the person – if different – on whose behalf it is sent;
(b) 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
(c) set out an unsubscribe mechanism in accordance with subsection 11(1).
CASL places a burden on the sender to retain proof of the express consent. A similar consent procedure applies to the installation of computer programs under CASL.
Under CASL, the penalties may reach $1,000,000 for each day a violation has occurred. Accordingly, it is important for U.S. companies to immediately examine their electronic advertising procedures that reach Canadian's businesses and citizens to ensure they are in compliance with CASL.
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