Canada’s Anti-Spam Legislation

Canada’s Anti-Spam Legislation (“CASL”) applies when organizations (1) send commercial electronic messages, and (ii) install computer programs on another person’s computer system.

Sending Commercial Electronic Messages

Subject to limited exceptions, CASL requires consent (either express or implied) for the sending of commercial electronic messages and that each message include prescribed contact information for the sender as well as an unsubscribe mechanism
 
Express Consent:
 
CASL prescribes requirements for obtaining express consent. In making a request to obtain express consent, an organization must set out “clearly and simply” the following information orally or in writing:

  • the purpose for which consent is being sought;
  • the name by which the person seeking consent carries on business, if different from their name, if not, the name of the person seeking consent;
  • if the consent is sought on behalf of another person, the name by which the person on whose behalf consent is sought carries on business, if different from their name, if not, the name of the person on whose behalf consent is sought;
  • if consent is sought on behalf of another person, a statement indicating which person is seeking consent and which person on whose behalf consent is sought;
  • the mailing address, and either a telephone number providing access to an agent or a voice messaging system, an email address or a web address of the person seeking consent or, if different, the person on whose behalf consent is sought; and
  • a statement indicating that the person whose consent is sought can withdraw their consent.

Implied Consent:
 
Under the CASL, implied consent to send a commercial electronic message exists in circumstances where there is an “existing business relationship” or an “existing non-business relationship.” An existing business relationship is defined in the act to include, among other things, a business relationship arising out of:

  • the purchase or lease of goods or services two years before the day on which the message was sent;
  • a written contract between the recipient and sender, if currently in existence or expired within two years before the message was sent; or
  • an inquiry or application related to the above between the recipient and the sender six months before the day on which the message was sent.

Implied consent also exists in the business-to-business context where the recipient has conspicuously published or provided his or her electronic address to the sender without indicating a wish not to receive unsolicited commercial electronic messages at that address and the message relates to the recipient’s business role.

Content & Unsubscribe Requirements:

  • In all of the above circumstances, the commercial electronic messages must set out prescribed information that identifies the sender, methods to contact the sender, and an unsubscribe mechanism that enables the recipient to indicate, at no cost, the desire to no longer receive the messages–or a class of messages–from the sender.
  • Additional details are also required within the commercial electronic message when the message is being sent on behalf of another person.


Installation of Computer Programs

 
In general, CASL prohibits, in the course of commercial activity, installing, or causing to be installed, a computer program on any other person’s computer system, or causing electronic messages to be sent from that computer system, unless the express consent of the system owner has been obtained.

Express Consent:

  • A person seeking express consent for the installation of a computer program must, when requesting consent, set out “clearly and simply” the following information orally or in writing:
    • the function and purpose, in general terms, of the computer program that is to be installed;
    • the purpose or purposes for which the consent is sought;
    • the name by which the person seeking consent carries on business, if different from their name, if not, the name of the person seeking consent;
    • if the consent is sought on behalf of another person, the name by which the person on whose behalf consent is sought carries on business, if different from their name, if not, the name of the person on whose behalf consent is sought;
    • if consent is sought on behalf of another person, a statement indicating which person is seeking consent and which person on whose behalf consent is sought;
    • the mailing address, and either a telephone number providing access to an agent or a voice messaging system, an email address or a web address of the person seeking consent or, if different, the person on whose behalf consent is sought; and
    • a statement indicating that the person whose consent is sought can withdraw their consent.
  • CASL also sets out additional requirements for computer programs that perform one or more of a list of specified functions.

Penalties:
 
CASL identifies the Canadian Radio-television and Telecommunications Commission (“CRTC”) as the agency primarily responsible for regulatory enforcement, and permits the CRTC to impose administrative monetary penalties of up to $1 million per violation for individuals and $10 million for businesses. CASL outlines a range of factors to be considered, including the nature and scope of the violation, in assessing the penalty amount.

CASL also sets forth a private right of action permitting individuals to bring a civil action for alleged violations of CASL with damages of up to $200 per violation (i.e. per email sent), not exceeding $1,000,000 for each day on which a contravention occurred. The private right of action is set to come into force on July 1, 2017.

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