CASL: Anti-Spam Legislation

How CASL Affects your Ability to Market your Start-up
Canada’s Anti-Spam Legislation (“CASL”) came into effect in 2014.[1] CASL governs businesses or individuals (“the Sender”) that send promotional materials, through electronic channels, to a Canadian recipient (“the Recipient”). It is important to understand this legislation if you or your company is using emails, texts, or other electronic means for promotional purposes.
Important Terms
It is vital to understand the terminology used in CASL. CASL applies to any commercial electronic message (“CEM”) that is sent to an electronic address. Here are some terms you should be familiar with:

• CEM: Stands for commercial electronic message. CEMs are any electronic message for which it would be reasonable to conclude that one of the purposes of the message is to encourage participation in a commercial activity.[2] You should look at the entirety of the message to see if it promotes participation in a commercial activity. Simply sending an email asking for consent to send marketing material in the future is considered a CEM.[3]
• Electronic Message: Electronic message means a message sent by any means of telecommunication, including a text, sound, voice or image message.[4]
• Electronic Address: an address used in connection with the transmission of an electronic message to a mail account, instant messaging account, telephone account, or any similar account. Essentially, CASL covers CEMs sent via email, text, or other messaging service, but it does not cover live voice or automated telemarketing calls.
• Similar Account: Social media accounts may count as a “similar account” depending on the facts.[5] For instance, a Sender posting something on their Facebook wall would not be captured but sending a Recipient a direct message through Facebook Messenger would be captured as a similar account.[6]

Requirements to send a CEM
There are three elements the Sender needs to meet to send a CEM:

1. the Sender has consent from the Recipient of the message;
2. the Sender sets out the prescribed information. They must identify the person who sent the message and the person on whose behalf it was sent (if this is a different person). The Sender must provide their contact information. This must include their mailing information and one of the following: a phone number, email, or web address. These contact methods must be accurate and valid for at least 60 days after sending the CEM;[7] and
3. an unsubscribe mechanism. This must allow the Recipient to indicate, for free, that they wish to no longer receive CEMs (or any message) from that Sender. The Recipient must be allowed to unsubscribe through the same electronic means (if this is not practicable – then other electronic means which will enable them to unsubscribe) and the Sender must give an electronic address, link, or webpage at which they can indicate their wish to unsubscribe.[8] The unsubscribe mechanism must be capable of being “readily performed”. This means that it must be simple, quick, and easy for the Recipient to unsubscribe (e.g., clicking an email link to a website that allows them to click an unsubscribe button without having to login first).[9]

Consent
Consent is often an issue for a new start-up that lacks an extensive network of potential customers. It is important to note that consent can be implied or expressly given.[10] There are three situations for which consent can be implied:

1. when the Sender has an existing business or non-business relationship with the Recipient of the CEM;
2. the Recipient of the CEM has given the Sender their electronic contact information, the Recipient has not indicated that they do not want to receive unsolicited CEMs, and the message is relevant to the Recipient’s business, role, functions, or duties in a business or official capacity; or
3. the Recipient has conspicuously published their electronic address, the Recipient has not indicated that they do not want to receive unsolicited CEMs, and the message is relevant to the Recipient’s business, role, functions, or duties in a business or official capacity. [11]

This last situation is relevant to Sender’s that are considering sending CEMs to Recipient’s that post their electronic contact information online. Conspicuous publication means “that the electronic address is directly available to the public because it is typically indexed by a search engine.”[12] For example, finding a person’s email address through a simple Google search would qualify as a conspicuous publication. However, having to navigate through a corporate database with specific queries to find a person would not count as a conspicuous publication.[13]  For the second and third circumstance, the message must be relevant to the Recipient’s business, role, functions, or duties in a business or official capacity. For example, consent would not be implied if a Sender were to send promotional information about financial tools to a programmer in the Information Technology department. Consent may be implied if the Sender sent this to the Chief Financial Officer instead.
Overall, relying on any type of implied consent is difficult. The onus of proving that there is implied consent lies with the Sender. The few cases that have discussed these sections of CASL have shown that the courts construe implied consent narrowly.[14] [15] It is best for any start-up to get express consent to send any type of marketing message. Contravening CASL by not getting consent can result in very high administrative monetary penalties.[16]

Rick Josan is a member of the BLG Business Venture Clinic, and is a 3rd year student at the Faculty of Law, University of Calgary

References
[1] Parliament of Canada, “House Government Bill: 40th Parliament, 3rd Session” (20 February 2019), online:  Parliament of Canada LEGISinfo <https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=e&Mode=1&billId=4543582&View=6> [https://perma.cc/SW4M-PXTJ].
[2] An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, RSC 2010, c 23 [CASL] at s1(2).
[3] Ibid at s 1(3)
[4] Ibid at s 1(1).
[5] Government of Canada, “Frequently Asked Questions about Canada’s Anti-Spam Legislation” (last modified1 February 2019), online: Canadian Radio-television and Telecommunications Commission <https://crtc.gc.ca/eng/com500/faq500.htm> [https://perma.cc/7FBV-C25E] [FAQ].
[6] Ibid.
[7] Government of Canada, “Canada's Anti-Spam Legislation (Infographics)” (last modified 16 August 2018), online: Canadian Radio-television and Telecommunications Commission <https://crtc.gc.ca/eng/internet/infograph.htm> [https://perma.cc/XHX6-NPPA].
[8] CASL, supra note 2 at s 11.
[9] FAQ, supra note 5.
[10] CASL, supra note 2 at s 6(1)(a).
[11] CASL, supra note 2 at s 10(9).
[12] FAQ, supra note 5.
[13] Ibid.
[14] Blackstone Learning Corp, Re [2016] CarswellNat 12052, [2016] CarswellNat 12053.
[15] PIPEDA Report of Findings No 2016-003, Re [2016] CarswellNat 2533, [2016] CarswellNat 2534.
[16] FAQ, supra note 5.