Canada’s Anti-Spam Legislation (CASL), which sets forth guidelines for and places certain restrictions on sending “commercial electronic messages” (CEMs) to Canadian residents, is now in effect. Under CASL, sending a CEM to a Canadian resident’s email address requires consent from the resident, the sender’s identification information, and an unsubscribe mechanism. The summary below is derived from the CASL compliance-related information compiled by the Canadian Radio-television Telecommunications Commission (CRTC):

• CASL went into effect on July 1 and will begin with a transition phase, which provides a grace period of 6 to 36 months (depending on the nature of the relationship with the resident) to continue communications with residents and allow businesses to adjust to the new requirements.

• CASL allows a range of enforcement options, from mere warnings to maximum fines of $1 million for individuals and $10 million for businesses.

• The scope of CASL is not limited to emails. Under CASL, a CEM is a message that encourages participation in a commercial activity, including, but not limited to offering, advertising, or promoting a product, service, or person. Examples include email, SMS text message, and instant messaging.

• It is the responsibility of the party sending a CEM to obtain valid consent from the resident prior to sending. The consent required by CASL can be satisfied by express or implied consent.

  • Express consent is a positive or explicit indication of consent by the resident, whether oral or written, to receive CEMs and is generally valid until revoked by the resident.

  • Implied consent may be present because of a preexisting relationship with the resident and is generally only valid for a limited period of time (the event giving rise to the preexisting relationship must have occurred within two years immediately preceding the CEM). Examples of implied consent that arise from a preexisting business relationship include the resident making or inquiring about a purchase or lease transaction or the resident entering into a contract with the party that sends the CEM. Examples of implied consent that arise from a preexisting nonbusiness relationship include the resident’s membership in an association or voluntary organization or the resident providing a donation to or performing volunteer work for a registered charity, political party, or candidate.