I am sure that by now most of you have heard about CASL (pronounced “Castle”), the Canadian Anti-Spam Law. This law took effect July 1, 2014 and provides a ‘transition’ period until July 1, 2017.
Essentially, CASL regulates the use of Commercial Electronic Messages (CEM) for soliciting business. A CEM is defined as any electronic message that encourages participation in a commercial activity, such as an email that contains information for customers around a promotion, sale or contains a “special” price etc. If your organization sends CEMs, you’ll need “express consent” from the recipient before sending them.
Although this article won’t dive into the specifics of CASL and is not meant to be a definitive guide on this law (if you would like more information on CASL, please refer to the CRTC’s website) we will touch briefly on CASL exemptions for businesses as recently defined by the CRTC.
They introduced exemptions for business-to-business (B2B), telecommunications services (TSPs) and brought more clarity around CEMs where there is a personal relationship between sender and recipient.
Here is a summary of these exemptions.
Although CASL applies broadly to all CEMs, there are exemptions defined under the new regulations. Speciﬁcally, there are exemptions for CEMs sent internally within a business, and CEMs sent between businesses that have an ongoing business relationship.
These messages must be sent by an employee, representative, contractor or franchisee, and be relevant to the business, role, function or duties of the recipients.
Also exempt are communications sent to third-party business partners—marketing agencies, recruiting ﬁrms, development partners and insurance carriers, to name a few.
Messages sent to customers in response to a request for information: The new regulations address this by exempting messages sent by companies in response to requests, inquiries or complaints.
Messages sent to enforce a legal right: This would include messages sent for debt collection, licensing, enforcing contractual obligations etc.
Messages sent from outside Canada: These include messages sent by foreign businesses (provided the sender could not reasonably know the message would be received in Canada) and internationally-based Canadian organizations.
Third-party referrals: However, to qualify for the exemption the individual who sends the message must disclose in the message the full name of the person who made the referral; and the individual who made the referral must have an existing personal, family or business relationship with both the sender and the person who receives the message.
Telecommunications service providers (TSPs)
The new regulations also include two exemptions for TSPs which allow these groups to install a computer program(s) without consent:
• For the purpose of preventing illegal activities that pose a risk to network security and;
• For network update/upgrading purposes.
Although it seems like common sense that CASL was never meant to apply to messages or communications sent to family or friends, some stakeholders considered the definitions of personal and family relationships to be too narrow. The revised regulations have now broadened these definitions.
Now, a “personal relationship” is deﬁned as one where individuals have had voluntary, two-way communications at any point in the past (whether or not they have actually met in person.) Based on factors such as the sharing of interests, thoughts, ideas and experiences–this relationship is considered personal, unless the recipient has clearly indicated that they do not wish to receive any CEMs from the sender.
The deﬁnition of “family relationship” has also been expanded so that CEMs can be sent without consent to family members.
This is a high-level explanation of the new exemptions meant to give you a flavour of what has changed. In looking at the legislation in its entirety, including exemptions, you can’t help but applaud the concept behind CASL and the herculean effort to curb the vast amounts of unsolicited messages that we all get.
However, this is a double-edged sword in that only Canadian companies are bound by this legislation. Only time will tell what economic impact this will have on the Canadian market and what value we gain from receiving less unsolicited mail versus the value of potential business loss to foreign markets.