CASL Defenses, Part 1: Spam law to affect virtually every business in Canada

Hormel Foods, the makers of Spam canned lunch meat, introduced its Sir Can-a-Lot character in 2012. The use of the term “spam” to describe unwanted email is believed to be derived less from the product itself and more from a 1970 comedy sketch about Spam by British comedy troupe Monty Python. (Store.Spam.com)

New anti-spam regulations that go into effect July 1 will do more than prevent spamming within Canada by Canadian businesses. Canada’s Anti-Spam Legislation (CASL) is a catch-all net that covers all forms of electronic messaging, from email and newsletters to social media and software downloads. Businesses that don’t comply face fines of up to $10 million.

Businesses in Canada have just three weeks to make sure they have consent to send emails, newsletters, text messages and other electronic messages to customers or potential customers, or risk running afoul of Canada’s new anti-spam law.

CASL goes into effect July 1, and will affect not just spammers, but virtually every business in Canada.

After that date, businesses need either the implied or express consent of customers to continue sending them electronic messages or face individual fines of up to $1 million and corporate fines of up to $10 million. And any email or text message a business sends asking for that consent will be considered illegal, and could result in heavy fines, if it is sent after July 1.

Many Canadian businesses may assume the law doesn’t apply to them, say Andrew Aguilar and Ryan Black, lawyers with McMillan LLP who co-authored a new CASL guidebook called Internet Law Essentials: Canada’s Anti-Spam Law, published by Specialty Technical Publishers.

“Don’t let the anti-spam title fool you,” Aguilar said. “This is a wholesale regulation of electronic communications involving any businesses for any business purpose. Don’t just think that, ‘I’m not a spammer, so it doesn’t apply to me.’ I can’t think of a business in Canada that this wouldn’t apply to in today’s age.”

CASL covers all forms of electronic messaging – except phone calls, voice mail and faxes – that have any kind of commercial purpose.

For example, a newsletter that is strictly informational would not be subject to CASL, but one that contains advertising, solicitations or any form of promotion of a commercial nature would.

Salespeople who do cold calls by phone will not be able to make those same kinds of pitches by email under CASL, unless the email addresses they obtain were published somewhere (on a website’s contact list, for example) or otherwise had the express or implied consent of the recipient.

Companies that bought email lists will no longer be able to use those emails, unless they get the consent of the recipients or have implied consent – implied consent being one of CASL’s many fuzzy areas.

“We’re lawyers and we’ve been looking at the legislation for four months, and we’re still figuring stuff out about it,” Aguilar said. “It’s not the clearest, most unambiguous law on the books.”

While emails tend to be the main focus of CASL, several other forms of communication — from social media direct messages to computer programs that are automatically downloaded when new software is installed — are also covered in the new law.

Small and medium-sized businesses that do not have their own in-house legal and technical staff are not the only ones struggling to understand and comply with the new law.

“Bigger businesses have probably thought about the act, but a lot of them are scrambling right now to determine how it applies,” Black said. “As they apply it, they are learning it is more complex than they originally thought. There’s a ton of grey areas throughout the act.”

Once the new law is in effect, the Canadian Radio-television and Telecommunications Commission (CRTC) can levy fines against both corporations and individuals within those corporations. As of July 1, 2017, private citizens will be able to initiate actions against companies that break the law.

Some leeway will be given to those companies that can demonstrate they at least tried to comply with the new law.

“If you do your best to comply, and you somehow technically fail, you’re a lot safer than someone who didn’t try to comply,” Black said.

Visit the federal government’s CASL website for more information on the new CASL regulations. CLICK HERE to order your copy of Internet Law Essentials: Canada’s Anti-Spam Law.

TO BE CONTINUED. To read Parts 2 and 3 of this series, click HERE and HERE respectively.

— Nelson Bennett reports on technology for Business in Vancouver. Follow him at @nbennett_biv on Twitter.

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