Canada’s Anti-Spam, Pro-Consent Legislation

In our May 30, 2014 issue, the head of Pushor Mitchell’s Technology and Securities Law Group, Blair Forrest, reminded our readers of the impending arrival of Canada’s Anti-Spam Legislation (“CASL”) effective July 1, 2014 and discussed the overall structure and impact of this game-changing legislation.

This month we take a closer look at the consent provisions of CASL and provide some general information for those businesses and individuals who are interested in sending “commercial electronic messages” (“CEM”) to clients but who are not interested in potentially incurring the very substantial monetary penalties enforceable under CASL.

Before proceeding, it is important to note the definition of a CEM. A CEM is a message sent to an electronic address (i.e. e-mail account, telephone/SMS account, instant messaging account) which includes such content as to make it reasonable to conclude that the message has as its purpose, or one of its purposes, to encourage participation in a commercial activity. Even if a single line amongst dozens appears to promote a product or service and encourages the recipient of the message to purchase that product or service, that message will likely be considered a CEM. Interestingly, it appears that a commercial message posted to a Facebook wall would not be captured under CASL as there is no electronic address to which a message is being sent; conversely, a commercial message sent using Facebook messaging would qualify as sending CEMs to a specific electronic address.

The fundamental way through which CASL fights “spam” is by requiring the sender of a CEM to have the consent of the recipient. That consent comes in two forms and can be either (1) implied or (2) express. To assist our readers in identifying whether or not they have obtained the required consent, the following are some highlights of the prominent features of implied and express consent.

Implied consent:

• You may have implied consent owing to an existing business relationship if the recipient has made, or enquired about, a purchase or lease of goods, services, land or interest in land, a written contract or the acceptance of a business, investment or gaming opportunity from you.¹
• If you are a charity or political party/candidate and the recipient has made a donation or done volunteer work, or if you are a club, association or voluntary organization and the recipient is one of your members, then you may have implied consent owing to an “existing non-business relationship².
• If the electronic address of the recipient was provided to you (i.e. business card) or was conspicuously published (e.g. the “Contact Us” section of a website) and was not accompanied by any restrictions against the sending of messages, then so long as your message relates to the functions/activities of the recipient’s business, or relates to the recipient in their official capacity, you may have implied consent.³
• It is critical to remember that there is a time limit to implied consent. In most, but not all cases, implied consent lasts for a period of two (2) years after the event that starts the relationship (i.e. the inquiry about a lease of goods). After the two (2) year period, express consent is required.

Express consent:

• Express consent can be either oral or written, so long as it is the result of some affirmative action taken by the recipient (e.g. entering an e-mail address and clicking submit).
• When requesting consent, the purpose or purposes for which the consent is being sought must be clearly and simply stated. Additionally, the name and contact information of the sender must be given to the recipient as well as a statement describing how consent can be withdrawn.⁴
• There is no time limit to express consent; it lasts until the recipient withdraws his or her consent.

Let’s try an example. To obtain permission to send CASL-compliant CEMs to a customer’s electronic address, a small business owner could include the following on his/her website:

“You are about to purchase Product A for $50.00. To confirm your purchase, please select “Confirm purchase” below.

To receive Company X’s newsletter containing news, updates and promotions regarding Company X’s products, please insert your e-mail address below in the space provided below. You can withdraw your consent at any time by clicking the unsubscribe link on e-mail’s sent by Company X or by visiting Company X’s website.

Please refer to our Privacy Policy or Contact Us for more details.”

So long as the recipient of CEMs undertakes a positive action, the taking of such an action is not “bundled” to anything else (i.e. the customer could confirm his/her purchase without being forced to provide their e-mail address for the purposes of receiving Company X’s newsletter), and the prescribed information and unsubscribe mechanisms have been provided, then express consent will have been properly obtained.

It is important to note that CASL requires that the sender of a CEM be able to prove that they have consent. As such, businesses and individuals should keep records of how and when implied or express consent was obtained.

The federal government has placed the concept of consent at the heart of its fight against spam. To remain CASL-compliant, Canadian individuals and businesses should do their best to educate themselves on what is expected of them in order to avoid potential repercussions. The information provided herein is not comprehensive; rather, it is designed to act as a primer and to help our reader’s identify any red flags which may be raised as a result of their current practices with regards to consent. For further information, please visit Canada’s Law on Spam and Other Electronic Threats and Canada’s Anti-Spam Legislation.
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1 CASL, Subsection 10(9) and (10).
2 CASL, Subsection 10(13).
3 CASL, Subsection 10(9)(c).
4 CASL, Subsection 10(1)(a) and (b).

This article was written by Brian Stephenson, a summer student currently assisting in our Intellectual Property Group. Please do not hesitate to contact one of our intellectual property lawyers for more information or a confidential consultation: Intellectual Property