Canada’s new anti-spam law (the “CASL”) will go into effect on July 1, 2014. As the CASL imposes more exacting requirements on the use of commercial email than the U.S. does, any business that relies on commercial email to reach residents in Canada must familiarize itself with the CASL and the consequences of failing to comply with it.
The CASL regulates “commercial electronic messages,” which is defined very broadly. Under the CASL, essentially any email that touches on commerce will be classified as a commercial electronic message unless it falls into one of the enumerated exceptions.
Importantly, a business may only send a commercial email if the recipient has previously consented to receiving email from that sender. This is a dramatic difference from the federal CAN-SPAM law and state spam laws, which permit unsolicited email, as long as the email is not false or misleading.
Furthermore, the CASL requires that email contains the following information:
A business can obtain express consent from a recipient if the business clearly and simply sets out the following information in its request for consent:
Implied consent exists in the following situations:
The following commercial emails involving existing business relationships do not require consent, but must contain the information described above: emails providing warranty information, transaction confirmations, quotes and estimates in response to a request, or related to an ongoing subscription or membership plans. Consent is also not required if the email is the first sent to an individual after a referral by a third party with an existing business relationship to the sender.
A business that fails to follow the CASL faces monetary penalties up to $1,000,000 in the case of an individual, or $10,000,000 in the case of a business. A recipient may also bring a private action, which can result in damages as much as $1,000,000. Agents of a business may be liable under the CASL for violations by the business, and a business is similarly liable for violations by its employees acting within the scope of their employment.
In conclusion, the CASL imposes strict obligations on any business that relies on commercial email to reach residents in Canada. These obligations are more onerous than those imposed by U.S. state and federal law. Moreover, a violation may result in severe monetary penalties by either an administrative or a private action. If you send commercial emails in Canada, you must take affirmative steps to ensure that your campaigns comply with the CASL.
If you have a specific question or would like to discuss the CASL and how it might affect your business, please call us at (415) 955-1155, ext. 120, or submit your matter using our online case submission form.
This entry was posted on Monday, June 02, 2014 and is filed under Spam Law, Internet Law News.