By Matt Leask
Nearly three years have passed since Canada’s Anti-Spam Law (the “CASL”/the “Act”) came into force on July 1, 2014, and as we approach Canada’s 150th anniversary, changes to the CASL are on the way. The CASL is one of the strictest anti-spam laws in the world, and it applies to a lot more than just traditional “spam” emails. The Act prohibits the sending of any electronic message with a commercial purpose by any individual or organization, including municipalities. Any business that uses electronic messaging as part of its business needs to understand the operative provisions of the CASL and keep up to date with changes to the law.
At its core, the CASL prohibits the sending of “commercial electronic messages” (“CEMs”) unless the recipient has consented to receiving CEMs from the sender. Each and every CEM must contain an unsubscribe mechanism.
As of July 1, 2017 two significant changes to the CASL will come into effect.
- The three-year transitional period where businesses could rely on implied consent where the sender and recipient had an existing business relationship will come to an end; and
- The implied consent to update or upgrade computer programs that were originally installed prior to the CASL coming into effect will no longer be available.
Section 66 of the original provisions of the CASL provided that businesses could rely on implied consent to received CEMs in situations where the recipient and sender had an existing business relationship. That section will no longer have effect as of July 1, 2017. New rules will apply for existing business relationships. Implied consent will only last for two years from the most recent transaction between the parties, or six months’ from when the recipient made an inquiry with the sender. Once the implied consent expires, express consent is required before any further CEMs can be sent.
This change will impact many businesses, and it is important to take action to ensure compliance with the new rules. Businesses who send CEMs in reliance on implied consent must track their implied consents and take action when they expire. Business are advised to obtain express consent from each recipient for compliance purposes as a “best practice”.
The second change to the CASL only applies to software providers. As of July 1, 2017 software providers must obtain express consent for updates and upgrades to currently installed software programs.
The CASL is enforced by the Canadian Radio-Television and Telecommunications Commission (“CRTC”). The CRTC reviews complaints and issues monetary penalties for non-compliance. The original version of the legislation provided for a private right of action to come into force on July 1, 2017. This section would have allowed individuals to bring an action against a business for breach of the CASL. This private right of action has been suspended by the government and will not come into force until further notice.
Matt Leask is an Associate in the Corporate and Commercial department at Lancaster, Brooks & Welch LLP and can be reached at 905-641-1551