How to Ensure You Are CASL Compliant
On July 1, 2014, the Canada Anti-Spam Legislation of 2014 ("CASL") came into effect. If you are sending marketing emails or other electronic messages to people in Canada, you need to be aware of the new rules to avoid potentially substantial penalties.
Under CASL, it is illegal to send to or from a Canadian computer a "commercial electronic message" unless the recipient has consented to receiving the message. CASL also requires that all commercial electronic messages include an unsubscribe mechanism.
What Communications Are Affected?
A commercial electronic message is any message sent in electronic format to an electronic address that encourages the recipient to take part in some commercial activity, including the promotion of products or services. Email is clearly covered by CASL, and so is certain social media messaging. For example, a Facebook wall post would not be covered by CASL, but a message sent directly to social media users using Facebook messaging or LinkedIn messaging could be deemed a commercial electronic message.
How Do You Obtain the Consent of the Recipient?
A recipient's consent can be either "express" or "implied." A request for express consent must include:
- The sender's contact information;
- The purpose of the consent; and
- The fact that the recipient can revoke consent at any time.
Express consent requires the recipient to actively "opt-in." A message informing the recipient that they will receive commercial electronic messages unless they check or uncheck a box or click a button to opt-out is NOT sufficient. Further, a "commercial electronic message" cannot be used to obtain express consent, so a separate communication must be used to obtain consent prior to sending a commercial electronic message.
Express consent that was obtained prior to the effective date of CASL will remain as valid consent until withdrawn by the consenting person.