Canada’s Anti Spam Legislation
The below information is intended as basic guidance only and should not be taken as legal advice for determining your compliance with CASL.
The Burnaby Board of Trade is calling for CASL to be immediately amended and replaced.
Read our policy position here.
What is it?
Canada’s Anti Spam Legislation (CASL) is a new anti-spam law that came into force on July 1, 2014 and the transition period end on July 1, 2017. This legislation covers all commercial electronic messages (CEMs) sent in Canada by any business or organization, including emails, SMS/text messages, and instant messages and requires certain criteria be met before messages are sent.
What does this mean?
The legislation is lengthy but focuses mainly on establishing criteria for consent and content for all messages.
Consent: the sender must have either explicit or implied consent from the recipient before sending the message.
Content: all messages will need to include information that clearly identifies who the sender is, provide the sender’s contact information (mailing address, and either website, email address or phone number), and allow the recipient to withdraw consent with an unsubscribe function that takes effect as soon as possible and is free.
In short, everyone on your mailing list (who is not exempt) must have consented to receive messages from you. Business will need to have a way of recording when/where/how they received consent from each person they contact, or why your message is exempt.
What is exempt?
There are several instances where your message will be excluded from CASL, including when responding to someone making an inquiry or complaint, delivering a quote, completing a sale, or communicating information on warranties and recalls.
Business-to-business, or B2B, messages are exempt as well, provided they are sent between individuals in the same organization, or between individuals of two different organizations where the organizations have an existing relationship and the message is regarding that relationship or its activities. Unfortunately, this definition of ‘relationship’ has not been defined further so it is not clear how broadly this will be interpreted by government. Unfortunately, this exemption can be seen as meaning that if you do not already have a pre-existing relationship then the messages with that business are not exempt and you would need consent. This would impact prospecting or sales messages to prospective clients, again unless you have their email address from a business card they gave to you, or from a company’s website where emails are posted.
Messages are also exempt if they are sent between individuals who have a personal/family relationship as defined by the regulations.
Messages sent by registered charities which are meant to fundraise for the charity are also exempt.
What about referrals? Can I contact them?
Referrals and introductions are an important part of business and something the BBOT network does a lot. The first electronic message sent to a referral is exempt, provided the person who gave you the referral has a relationship with the contact. You must mention in the message that it is a result of a referral and you must provide the full name of the person who gave you the referral.
What is consent?
You must have either explicit or implied consent to send an electronic message to someone.
The recipient has given you permission to send them messages and you have a record of where/when/how you obtained that permission. Explicit consent can be obtained several ways, including:
1. The recipient has completed a web form or sign-up form and has opted-in to receiving your message. But remember:
– you must explicitly state what they will receive
– you must be clear who is seeking their consent
– you must indicate that the contact can unsubscribe at any time
– you must allow the contact to opt-in manually (you can’t pre-check the box!)
2. The recipient verbally (or through other means) gave you permission to contact them and you can record when/where/how that occurred.
The recipient can be sent messages because you have an existing business or non-business relationship with that person/business, or because they have publicly disclosed their email address. Implied consent can be assumed in several instances, including:
1. An “existing business relationship” exists when you are doing business with someone or have done business with them in the past 24 months. This could mean either the recipient purchased a product or service from you or you have entered into a contract with them. For 24 months following the end date of your commercial/contractual activity together, you have implied consent to contact that person. After 24 months you will not have permission to send to this contact unless they make another purchase or make an inquiry (and the expiration resets) or you get them to opt-in and provide express consent.
2. Another form of “existing business relationship” exists when someone makes an inquiry of your business. For 6 months following that inquiry, you are able to communicate with them under implied consent. After 6 months you will not have permission to send to this contact unless they make another inquiry or make a purchase (and the expiration resets) or you get them to opt-in and provide express consent.
3. An “existing non-business relationship” arises when a contact provides a gift/donation to a registered charity, volunteer for or attends a meeting of a registered charity, or is a member in a club, association or voluntary organization. In each of these instances, the sender has 24 months during which they have implied consent to send messages to the contact. After 24 months you will not have permission to send to this contact unless they make another donation/volunteer/renew membership (and the expiration resets) or you get them to opt-in and provide express consent.
4.. The recipient has disclosed their email address to you without indicating that they do not want to receive unsolicited messages. This can be thought of as the “business card” consent. (this also applies if the person posts their email address on their website without an explicit disclaimer indicating they do not wish to receive unsolicited messages). The message must, however, be relevant to them/their position/their business.
When does it start?
CASL is effective now! The 3-year transitional period ends on July 1, 2017 and all messages not explicitly exempt from CASL must follow its regulations.
Where can I find more resources?
The Burnaby Board of Trade is interested in hearing how complying with this new legislation impacts your business. Feel free to contact Cory Redekop at firstname.lastname@example.org