CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
*******************
For more information about CASL, see: CASL (Anti-spam Law), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and Contests and CASL.
For more Canadian advertising/marketing, competition, contest and CASL (anti-spam) law terms and phrases, see: Advertising Law Terms, Competition Law Terms, CASL Law Terms – N-Z, Contest Law Terms – A-C, Contest Law Terms – D-H, Contest Law Terms – I-M, Contest Law Terms – N-S and Contest Law Terms – T-Z.
******************
The following are some key CASL (Canadian federal anti-spam legislation) related terms (A-M):
Administrative monetary penalties.
Some federal legislation in Canada includes “administrative monetary penalties” as potential penalties for contravening the legislation instead of criminal or quasi-criminal fines, including Canada’s federal Competition Act and CASL (federal anti-spam legislation).
For example, the potential penalties for violating the civil misleading representations provisions of the Competition Act include Competition Tribunal or court orders to cease the conduct, publish a corrective notice, pay restitution and/or pay an administrative monetary penalties (essentially civil fines): (i) for individuals up the greater of $750,000 ($1 million for each subsequent order) and three times the value of the benefit derived from the deceptive conduct if that amount can be reasonably determined; and (ii) for corporations up the greater of $10 million ($15 million for each subsequent order), three times the value of the benefit obtained from the deceptive conduct or, if the latter amount cannot be reasonably determined, 3% of the company’s annual worldwide gross revenues.
Violation of CASL (Canada’s federal anti-spam legislation) may result in an administrative monetary penalty of up to $1 million (for individuals) or $10 million (for corporations).
Aiding.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A person will be found liable if they are found to be aiding any act contrary to any of s. 6 to 8 of CASL. Whether a person has committed the act of aiding under s. 9 of CASL depends on the facts of each case. The following non-exhaustive factors are generally considered: the position of the person in relation to the prohibited activity, how the person contributed to the commission of the activity or facilitated the commission of the prohibited activity (including whether the person failed to take action to stop the prohibited activity from taking place), and the connection between the aid provided and the commission of the prohibited activity. Accordingly, failing to act in certain circumstances, such as when the person is in a position to allow a CASL violation by others to occur and does not take any action, could render a person liable under s. 9 of CASL. As another example, if a company provides the necessary infrastructure or software to install malicious computer programs (malware), that company may be found liable under s. 9 of CASL. It is important and useful for a company to have the following in place, as necessary: written contracts and corporate compliance policies or procedures to ensure compliance with CASL; and measures to monitor how their services are used.”
“Business card” category of implied consent.
In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies.
CASL contains a so-called “business card” category of implied consent, which requires that a recipient has disclosed their electronic address to a sender without indicating that they do not want to receive unsolicited CEMs and the message is relevant to their business.
It is important for electronic marketers to carefully review the requirements for express consent and each type of implied consent defined by the legislation.
CASL (Canadian federal anti-spam legislation).
On July 1, 2014, Canada’s federal anti-spam law (CASL) came into force. CASL is one of the strictest anti-spam laws in the world. In general, CASL requires express or implied consent to send Canadians commercial electronic messages (CEMs) as defined in the legislation. CASL also imposes sender identification and opt-out (i.e., unsubscribe) requirements for CEMs.
CASL is relevant for individuals, companies and other organizations that engage in electronic marketing, including e-mail, text messaging, instant messaging and some types of social media marketing (e.g., where messages are sent to electronic addresses, such as via some social media platforms’ messaging services). CASL also often applies when running contests or other types of promotions in Canada, including in the following situations: (i) if electronic distribution/marketing lists will be used to market the contest/promotion, (ii) the contest/promotion will include the collection of e-mails for marketing unrelated to the administration of the contest/promotion, (iii) if participants’ e-mail addresses will be shared with third parties (e.g., related entities, affiliate marketers, lists will be sold, etc.) or (iv) participants are encouraged or required to “share” information about the contest/promotion with others (e.g., “friends and family” type promotions).
The potential penalties for violating CASL include civil administrative montetary penalties (essentially civil fines) of up to CDN $1 million (for individuals) and CDN $10 million (for corporations).
Commercial electronic message (CEM).
Canada’s anti-spam legislation (Bill C-28) introduced an “opt-in” regime for electronic marketing using “commercial electronic messages” (“CEMs”). “CEMs are defined as “for the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that (a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land; (b) offers to provide a business, investment or gaming opportunity; (c) advertises or promotes anything referred to in paragraph (a) or (b); or (d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.”
“Commercial activity” is defined broadly as “any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.”
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A key question is the following: Is this message I am sending a commercial electronic message (CEM)? Is one of the purposes to encourage the recipient to participate in a commercial activity? When determining whether a purpose is to encourage participation in a commercial activity, some parts of the message to examine are: the content, hyperlinks in the message to website content or a database, and contact information. These parts of the message are not determinative. For example, the simple inclusion of a logo, a hyperlink or contact information in an email signature does not necessarily make an email a CEM. Conversely, a tagline in a message promoting a product or a service or encouraging the recipient to purchase a product or service would constitute the message as a CEM. Some examples of CEMs include: offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land; offers to provide a business, investment or gaming opportunity; and promoting a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so.”
Conspicuous publication (category of implied consent).
In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies.
CASL contains a so-called “conspicuous publication” category of implied consent, which is one of a number of types of implied consent permitted under the legislation. This category of implied consent requires that all three of the following requirements be met: (i) the recipient has conspicuously published their e-mail address (or caused it to be published); (ii) there is no statement that the recipient does not want to receive CEMs; and (iii) the CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity.
It is important for electronic marketers to carefully review the requirements for express consent and each type of implied consent defined by the legislation.
Co-sponsor / indemnification agreements (Canadian advertising and contest law).
In some contests/promotions, a contest sponsor or other party may want to participate in a promotion with a third party (e.g., a contest administrator, influencer or marketing partner) being responsible for the majority of the marketing and administration of the contest/promotion.
Some examples include franchisors with franchisees conducting the majority of a contest/promotion, major brands that partner with influencers and brands that partner with other co-sponsors or prize sponsors.
In many cases, one party, whether it is a franchisor, major brand or a co-sponsor, is interested in being involved with a contest or promotion (e.g., contributing some prizes or intellectual property assets, such as their name or marks), but wants another party (or parties) to conduct the majority of the marketing and administration for the contest/promotion.
Given, however, the potential risk of partnering in promotions with third parties (particularly, smaller companies or potentially less sophisticated individuals, such as influencers), it can make sense to enter into an indemnification or co-sponsor agreement with third parties involved in a promotion.
While the substance of a particular agreement will depend on the parties, type of contest/promotion and what each party involved is responsible for in the promotion, there are often several types of common provisions in each agreement.
These include covenants setting out the obligations of the parties (i.e., responsibilities in the contest/promotion including marketing, administration and contribution of prizes), description of the promotion (including how it will be marketed, marketing channels and timetable), use of names, marks and other intellectual property, covenants to comply with relevant laws (e.g., Canadian anti-spam law (CASL), misleading advertising laws endorsements/testimonials laws including disclosure of material connections), indemnification provisions to shift risk in the event issues arise and often rights to review advertising and draft creative before being published or posted.
Such agreements can help parties shift risk where they are co-sponsors or partners in a promotion. These types of agreements are also a practical way for parties to engage in a contest or other type of promotion with relatively limited involvement (e.g., only contributing a prize(s) or the use of their name, marks or other intellectual property), while still achieving marketing value for their brand.
Director and officer liability.
In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies.
Under CASL, directors and officers of companies can also be liable for violations of CASL in addition to the senders of CEMs. In this regard, CASL contains a director and officer liability section, which provides that “an officer, director, agent or mandatory of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against”.
Section 54 of CASL, however, also provides a due diligence defence.
Electronic address.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “An electronic address is defined in CASL as being: an email account, a telephone account, an instant messaging account, and any other similar accounts. Some social media accounts may constitute a ‘similar account.’ Whether a ‘similar account’ is an electronic address depends on the specific circumstances of the account in question. For example, a typical advertisement placed on a website or blog post would be excluded. In addition, whether communication using social media fits the definition of ‘electronic address,’ must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. For example, a Facebook wall post would not be captured. However, messages sent to other users using a social media messaging system (e.g., Facebook Messenger and LinkedIn messaging), would qualify as sending messages to ‘electronic addresses.’ Websites, blogs and micro-blogging would typically not be considered to be electronic addresses.”
Electronic message.
In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies.
With respect to “electronic messages”, CASL is technologically neutral. It defines electronic messages as those sent by any means of telecommunication, including text, sound, voice or image messages. As such, CASL can apply to a variety of types of electronic media, including e-mail, text messaging, instant messaging and direct messages (e.g., via social media platforms).
Existing business relationship (category of implied consent).
In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies.
CASL contains an “existing business relationship” category of implied consent. “Existing business relationships” include: (i) the purchase of products, goods, services or land within two years before a message is sent; (ii) the acceptance by the recipient of a business, investment or gaming opportunity within two years before a message is sent; and (iii) an inquiry by the recipient for products, goods, services, etc. within six months before a message is sent. For existing business relationships, however, a marketing list must be scrubbed on a rolling basis once the above dates have expired unless express consent has been obtained or another category of consent (or an exception) can be relied on.
It is important for electronic marketers to carefully review the requirements for express consent and each type of implied consent defined by the legislation.
Family relationship.
In general, Canada’s federal anti-spam legislation (CASL) requires that senders of unsolicited commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies.
CASL contains an exception to the unsolicited CEMs section of CASL (section 6) for messages sent to a person with whom the sender has a “family relationship”. Importantly, however, the definition of “family relationship” under CASL is limited to spouses, common-law partners and parent-child relationships (i.e., not all family recipients will be exempt).
This definition can be relevant, for example, in “friends and family” type contests or promotions where participants may be requested or required to share information about the promotion with friends and family (e.g., for additional contest entries). Marketers should be careful in launching such promotions given the very specific definitions of “personal relationships” and “family relationships” under CASL (i.e., there is no blanket exemption under CASL for all types of friends and family recipients).
It is important for electronic marketers to carefully review the requirements for each type of consent (whether express or implied) and exemption under CASL, as there are specific requirements for each type set out under the legislation.
Implied consent.
In general, Canada’s federal anti-spam legislation (CASL) requires that senders of commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies.
Consent may be implied for CASL, including where there is: (i) an “existing business relationship” (as defined by CASL); (ii) an “existing non-business relationship” (also as defined by CASL); (iii) where a person has published their electronic address without a statement that they do not want to receive unsolicited CEMs and the message is relevant to their business; and (iv) a recipient has disclosed their electronic address to a sender without indicating that they do not want to receive unsolicited CEMs and the message is relevant to their business.
Each of these different types of implied consent under CASL have very specific requirements that must be met that should be carefully reviewed by electronic marketers.
*******************
For more information about CASL, see: CASL (Anti-spam Law), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and Contests and CASL.
For information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.
********************
SERVICES AND CONTACT
We are a Toronto based Canadian competition and advertising law firm that helps clients in Toronto, across Canada and the United States practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
Our Canadian advertising/marketing law services include advice in relation to anti-spam legislation (CASL), Competition Bureau complaints, the general misleading advertising provisions of the federal Competition Act, Internet, new media and social media advertising and marketing, promotional contests (sweepstakes) and sales and promotions. We also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
For more information about our services, see: services
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
