Canadian Spam Laws

Canadian Spam Laws

Canada is enacting legislation effective in 2013 that will impact marketing emails not only for those sending from Canada, but for any email that can be accessed in Canada. The new law named CASL is similar, yet stricter than the U.S. CAN-SPAM.

The stakes are high. Penalties can go up to $10 million, with personal liability for directors and officers. Not to mention, you are presumed guilty until proven innocent.

So how do you know if you are in volition?

1. Is it an electronic message?

This means more than just email – text messaging, IM messaging, and potentially in the foreseeable future, telemarketing.

2. Is it ‘commercial’?

This is determined by the message content, if it has links to a website, or if it is reasonable to conclude that the purpose is to encouraging participation in a commercial activity. This definition does include non-profits.

3. Does it fall into any of the below exceptions?

  • Those in a personal or family relationship
  • Inquiries for a commercial activity (ex – requesting rate information to a lawyer listed on a law website)
  • Circumstances related to public safety/law enforcement
  • Confirming a commercial translation (while an email providing the status of a purchased item is covered, including marketing messaging in this email is grey-area)
  • Factual information regarding membership accounts, loans, subscriptions, employment details or benefit plans
  • Information regarding warranty, product recall or safety/security
  • Delivers a product, including upgrades

4. If it is not an exception, do you have opt-in consent?

You cannot send email to obtain consent (so referral marketing campaigns can definitely be in violation). You have consent if you have an existing business or non-business relations with the person, which must have had two-way communication in the last 2 years. You also have consent if the email address was publicly listed or given to you (on or offline) with no anti-spam notice, so long as the message is relevant to their business, role or official duties.

If you do have this opt-in consent or you were an exception listed in #3, you can send, but you still need to follow these message formatting requirements:

  • Clearly state who is sending the message and on whose behalf they are sending it.
  • Clearly state contact information for the sender that will be valid for 60 days.
  • Provide an opt-out link with a process that is ‘readily able to be preformed’.

The law is not yet active, so there is no precedence for how this will play out. But certianly better safe than sorry!

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