Canada Gets a Tough New Anti-Spam Law

Canada’s new anti-spam law (the “CASL”) will go into effect on July 1, 2014. As the CASL imposes more exacting requirements on the use of commercial email than the U.S. does, any business that relies on commercial email to reach residents in Canada must familiarize itself with the CASL and the consequences of failing to comply with it.

The CASL regulates “commercial electronic messages,” which is defined very broadly. Under the CASL, essentially any email that touches on commerce will be classified as a commercial electronic message unless it falls into one of the enumerated exceptions.

Importantly, a business may only send a commercial email if the recipient has previously consented to receiving email from that sender. This is a dramatic difference from the federal CAN-SPAM law and state spam laws, which permit unsolicited email, as long as the email is not false or misleading.

Furthermore, the CASL requires that email contains the following information:

• the identity of the sending business and/or the business on whose behalf the email was sent, including d/b/a information;
• contact information, including a physical address and either a telephone number, email address, or web address of the sender or on whose behalf the email was sent, all of which must remain accurate for at least 60 days; and
• an unsubscribe mechanism.

A business can obtain express consent from a recipient if the business clearly and simply sets out the following information in its request for consent:

• the purpose for the consent;
• the identity of the business seeking consent and/or the business on whose behalf consent is sought, including d/b/a information;
• contact information, including a mailing address and either a telephone number, email address, or web address of the business seeking consent or the business on whose behalf consent is sought; and
• a statement that consent may be withdrawn.

Implied consent exists in the following situations:

• where there is an existing relationship that involves a purchase within the past two years, a current contract exists, or an inquiry has been made within the prior six months; or
• where an email address has been published or disclosed conspicuously, without a statement that the recipient does not want to receive commercial emails, and the commercial email is relevant to the recipient’s business.

The following commercial emails involving existing business relationships do not require consent, but must contain the information described above: emails providing warranty information, transaction confirmations, quotes and estimates in response to a request, or related to an ongoing subscription or membership plans. Consent is also not required if the email is the first sent to an individual after a referral by a third party with an existing business relationship to the sender.

A business that fails to follow the CASL faces monetary penalties up to $1,000,000 in the case of an individual, or $10,000,000 in the case of a business. A recipient may also bring a private action, which can result in damages as much as $1,000,000. Agents of a business may be liable under the CASL for violations by the business, and a business is similarly liable for violations by its employees acting within the scope of their employment.

In conclusion, the CASL imposes strict obligations on any business that relies on commercial email to reach residents in Canada. These obligations are more onerous than those imposed by U.S. state and federal law. Moreover, a violation may result in severe monetary penalties by either an administrative or a private action. If you send commercial emails in Canada, you must take affirmative steps to ensure that your campaigns comply with the CASL.

If you have a specific question or would like to discuss the CASL and how it might affect your business, please call us at (415) 955-1155, ext. 120, or submit your matter using our online case submission form.