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What Non-Canadian Email Marketers and Senders Need to Know about the Canada Anti Spam Law (CASL)

   
Summary: The quick and dirty: The main immediate and relevant difference between the Canada Anti Spam Law (CASL) and the United States' CAN-SPAM, is that the CASL requires true opt-in, and it requires that the contact information within the email remain a viable way to contact the sender for at least 60 days.
 
 

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You may think that as a U.S. based email sender, or a sender from another country that is not Canada, you don’t need to worry about complying with the Canada Anti Spam Law (CASL). But you would be wrong.

But, if you are already complying with CAN-SPAM, and also already requiring true opt-in (and ideally confirmed opt-in (“COI”, also known as “double opt-in”)), and following the other generally accepted email best practices, then you should be fine.

[See our list of CAN-SPAM requirements and generally accepted email best practices.]

The quick and dirty: The main immediate and relevant difference between the Canada Anti Spam Law (CASL) and the United States’ CAN-SPAM, is that the CASL requires true opt-in, and it requires that the contact information within the email remain a viable way to contact the sender for at least 60 days.

Yes, there are lots of other clauses, but for the most part, with respect to sending email only, they track the combined requirements of CAN-SPAM, and email best practices (the latter of which already dictates the opt-in that CASL requires).

A secondary difference is that if you violate CASL, there is a private right of action. What that means is that if you send an email that violates CASL to someone in Canada, they can sue you, and recover damages against you.

So why are lots of people running around crying that the sky is falling? For the most part, these are businesses and email senders in Canada. Where for the first time, a national anti-spam law is coming online.

Remember how it was in the U.S. when CAN-SPAM passed and was about to go into effect? That is what is going on now in Canada. But if you are an email sender in a country that already has a national anti-spam law, and if you are following that law, then you should only have to make a couple of tweaks, if that, to also be in compliance with the relevant parts of the new Canada AntiSpam Law.

Explains Neil Schwartzman, Executive Director of the Coalition Against Unsolicited Commercial Email (CAUCE), “CASL covers all commercial electronic messages (CEMs) coming into, or going out of Canada. Period,” adding that “If a non-Canadian sender sends sufficient amounts of spam to Canadians they will be investigated, and if found guilty can be charged with administrative monetary penalties (AMPs) of up to $10,000,000 per email.”

“Having data showing proof of affirmative consent would be the best way to deflect such issues,” he adds.

You can read the full text of the Canada AntiSpam Law CASL here (PDF).

Relevant Text of Canada Anti-Spam Law (CASL)

6. (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless

(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and

(b) the message complies with subsection (2).

(2) The message must be in a form that conforms to the prescribed requirements and 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).

(3) The person who sends the commercial electronic message and the person — if different — on whose behalf the commercial electronic message is sent must ensure that the contact information referred to in paragraph (2)(b) is valid for a minimum of 60 days after the message has been sent.

(4) For the purposes of subsection (1)

(a) an electronic message is considered to have been sent once its transmission has been initiated; and

(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.

(5) This section does not apply to a commercial electronic message

(a) that is sent by or on behalf of an individual to another individual with whom they have a personal or family relationship, as defined in the regulations;

(b) that is sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity; or

(c) that is of a class, or is sent in circumstances, specified in the regulations.

(6) Paragraph (1)(a) does not apply to a commercial electronic message that solely

(a) provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent;

(b) facilitates, completes or confirms a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent;

(c) provides warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased;

(d) provides notification of factual information about

(i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or

(ii) the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent;

(e) provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled;

(f) delivers a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent; or

(g) communicates for a purpose specified in the regulations.

(7) This section does not apply to a telecommunications service provider merely because the service provider provides a telecommunications service that enables the transmission of the message.

(8) This section does not apply to a commercial electronic message

(a) that is, in whole or in part, an interactive two-way voice communication between individuals;

(b) that is sent by means of a facsimile to a telephone account; or

(c) that is a voice recording sent to a telephone account.

CASL Private Right of Action

47. (1) A person who alleges that they are affected by an act or omission that constitutes a contravention of any of sections 6 to 9 of this Act or of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act — or that constitutes conduct that is reviewable under section 74.011 of the Competition Act — may apply to a court of competent jurisdiction for an order under section 51 against one or more persons who they allege have committed the act or omission or who they allege are liable for the contravention or reviewable conduct by reason of section 52 or 53.
Marginal note:Limitation period

(2) Unless the court decides otherwise, no application may be brought later than three years after the day on which the subject matter of the proceeding became known to the applicant.
Marginal note:Affidavit to accompany application

(3) The application must be accompanied by an affidavit that identifies the alleged contravention or reviewable conduct, sets out every provision, act or omission at issue and any other facts in support of the application and, if the applicant claims that they have suffered an actual loss or damage, or have incurred expenses, as a result of the alleged contravention or reviewable conduct, states the nature and amount of the loss, damage or expenses.

(4) The applicant must, without delay, serve a copy of the application on every person against whom an order is sought, on the Commission if the application identifies a contravention of this Act, on the Commissioner of Competition if the application identifies conduct that is reviewable under section 74.011 of the Competition Act and on the Privacy Commissioner if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.

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What Non-Canadian Email Senders Need to Know about the Canada Anti Spam Law (CASL)
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What non-Canadian email senders need to know about the new Canadian Anti Spam Law (CASL)

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This article originally written on April 24, 2014, and is as relevant now as when it was first written.