How Canada’s Anti-Spam Legislation Will Affect Email Practices

Utilities, energy providers, trade associations, and other entities participating in or supporting the energy and infrastructure sectors will be impacted by Canada’s new anti-spam legislation, known as CASL. CASL affects anybody who sends commercial or promotional messages by electronic means, such as email and text message. It was enacted in 2010 but has yet to come into force. The CRTC, the agency responsible for overseeing CASL, has yet to set a date, but in recent meetings they indicate it will come into force sometime in 2013. This means businesses and organizations need to act now to get their email marketing strategies ready.

Although CASL highlights “spam,” the law is drafted so that it applies to a much broader array of messages than would normally be regarded  as spam. CASL applies to any “commercial electronic message,” meaning a message with a commercial purpose, regardless of whom it  is sent to or how many messages are sent. Technically, a single email sent to a person that has a commercial purpose falls under CASL. This means CASL can apply to emails that, among other things:

• provide market information or updates;
• highlight legal, regulatory changes or requirements;
• advertise a new product or service;
• invite the recipient to join an organization or attend a conference; or
• solicit parties to respond to procurements.

Since CASL applies to all messages that have the purpose of encouraging participation in a commercial activity, whether that is its primary purpose or simply one of its purposes, emails will need to be evaluated on a case-by-case basis to determine whether they are subject to CASL.

The key requirements of CASL are:

1. Consent: The recipient of the email must have given his or her consent to receive commercial types of emails. The consent can be expressly given, meaning the recipient signed a document or checked a box on a form, indicating his or her consent to receiving these kinds of messages from the sender. The consent must be specific about the type of emails that will be sent (such as marketing emails, product updates, promotions, and/or newsletters) and cannot be buried in the terms and conditions or privacy policy. Consent can be obtained orally, but adequate records should be kept to demonstrate that consent was given.There are limited circumstances where the recipient’s consent can be implied (in other words, he or she is considered to have given consent even though they have not signed anything or checked a box). Implied consent applies to customers who have purchased or leased a product or service from the sender in the past two years, and to customers with whom the sender has a contract that is ongoing or has expired within the past two years. In the trade association context, implied consent applies to messages sent by an association or voluntary organization to its current members or those who had been members in the past two years.Generally speaking, this means that consent can be implied for commercial emails that are sent to an organization’s existing customer or member base. The emails must still comply with the other requirements of CASL, as described below. However, implied consent can expire if the recipient’s relationship with the sender comes to an end, and it may be a challenge for organizations to keep track of who is an existing customer or member and when the two-year term expires. As such, it is recommended to obtain express consent  since that is valid until the recipient chooses to unsubscribe.
2. Content of the Message: The email must contain the name of the sender and contact information (address and telephone number, email or website). If the sender is sending the email on behalf of a third party (for example, a marketing agency is sending an email blast on behalf of its client), the sender must identify the person on whose behalf the message is being sent.
3. Unsubscribe: The email must contain an effective, no-cost mechanism that allows the recipient to unsubscribe from receiving future commercial messages.

It is important to note that the consent required under CASL is separate and different from the consent required under other federal and provincial freedom of information/privacy laws, such as PIPEDA, FIPPA or MFIPPA. CASL requires recipients to specifically consent to receiving marketing or promotional emails. The consent cannot be combined with the consent to provide personal information, or the acceptance of general terms of use or a privacy policy. Furthermore, if users are asked to check a box to indicate consent, the box cannot be pre-checked and the user must actively check the box to indicate consent to receive marketing emails.

There are some exemptions to CASL:

• Emails sent to confirm a transaction that the recipient entered into with the sender
• Emails responding to a request for a quote or estimate
• Emails that solely provide warranty or product recall information, or other factual information about the use of a product or service (e.g., bill payment reminders)
• Emails sent between people in a family or other personal relationship

Given the broad scope of CASL, companies and other entities involved in the energy sector need to examine their email marketing practices and ask themselves the following questions:

• What kinds of commercial emails do you send? Who are they sent to?
• Have you obtained express consents from any of the recipients?
• Do you use or buy distribution lists from marketing companies, third-party websites or other sources?
• Do your emails have an unsubscribe option that works?

CASL has implications for every business and organization that uses email or text messages to reach customers or potential customers. It is important to develop a strategy to comply with CASL before it comes into force.

This is an edited article provided by Borden Ladner Gervais LLP.