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