Ajax Privacy and Cybersecurity Lawyer, Rajen Akalu, of Akalu Law P.C., provides his thoughts on Canada’s Anti-Spam Legislation (CASL).
There have been a number of times when I have been trying to explain a compliance obligation pursuant to the Canada Anti-Spam Legislation when the client exclaims, “But I know for a fact this other company is doing nothing about this!” There’s a pause while I struggle to maintain my professional composure. This is a difficult statement to respond to. I have no idea about that other company, I’m not in a position to refute the client’s experience, there was no law school class that trains you to respond to random non-sequiturs. Any yet you have to say something. Finally, I came up with “how do you know whether the company in question is in compliance with the law?”
There can be a lot of pressure on lawyers to give the advice that the client wants to hear, rather than provide solutions that are legally defensible. CASL is aimed at reducing unwanted messages and ensuring responsible electronic communication. We all hate spam, but the internet makes mass communications, instantaneous and virtually free. The challenge is how to constrain this perfect tool of marketing in ways that are appropriate. Put another way, CASL attempts to reconcile the tension inherent in law, business and technology. Effective legal advice will necessarily involve determining for the client what is reasonable for in a given business context.
What is CASL?
Enacted in 2014, CASL is Canada’s primary law regulating commercial electronic messages (CEMs), including emails, texts, and social media messages. Its main purpose is to combat spam, phishing, and malware while protecting consumers and ensuring fair competition in the marketplace.
Key Requirements of CASL
For businesses engaging in electronic marketing, CASL sets out several important rules:
- Consent Requirement – Businesses must obtain express or implied consent before sending a CEM.
- Express consent: The recipient has explicitly agreed to receive communications.
- Implied consent: Exists in situations where a business relationship already exists, such as a purchase or an inquiry.
- Identification Information – CEMs must clearly identify the sender, including contact details such as the business name, mailing address, and a way to reach the sender.
- Unsubscribe Mechanism – Every CEM must include a clear and easy way for recipients to opt out of future messages. Businesses must process unsubscribe requests within 10 days.
- Avoiding Misleading Information – CASL prohibits false or misleading subject lines, sender information, and deceptive marketing practices.
Who Does CASL Apply To?
CASL applies to any individual or business sending commercial messages to recipients in Canada, regardless of where the sender is located. This means that international companies marketing to Canadian consumers must also comply with CASL.
Penalties for Non-Compliance
CASL carries significant penalties for violations. Businesses and individuals can face fines of up to $1 million for individuals and $10 million for corporations per violation. Additionally, CASL allows private legal action against violators, although this provision has been temporarily suspended.
How Businesses Can Stay Compliant
To ensure compliance with CASL, businesses should:
- Implement clear opt-in procedures for email lists.
- Maintain accurate records of consent.
- Regularly review email marketing strategies to align with CASL requirements.
- Provide a simple and effective way for recipients to unsubscribe from communications.
The Canadian Radio-Television and Telecommunications Commission has a very useful FAQ on CASL. I’d start there. There are a lot more requirements to discuss during implementation, but the main thing to figure out is how customer consent to send a CEM will be track. Third party providers can assist with this.
Final Thoughts
CASL is a vital law that protects consumers from spam while promoting ethical digital marketing. Businesses that follow CASL guidelines not only avoid legal penalties but also build trust with their audience by ensuring transparency and respect in their communications. By understanding and implementing CASL best practices, companies can create effective marketing strategies that comply with the law and enhance customer relationships.
Rajen Akalu
647 299 5079
rajen@akalulaw.com
