In today’s digital world, businesses frequently use email and other electronic tools to reach customers and clients. While effective, these communications must be carefully managed to comply with Canada’s Anti-Spam Legislation (“CASL”), one of the most stringent anti-spam frameworks in the world. If your business sends commercial emails or texts, understanding CASL is essential to avoid legal and financial consequences.
What is a Commercial Electronic Message (CEM)?
Under CASL, a commercial electronic message (CEM) is any electronic communication (like an email, SMS, or instant message) that encourages the recipient to engage in a commercial activity. This includes promoting a product or service, offering a business opportunity, or even requesting consent to send future commercial messages.
Even messages that don’t directly promote something, but are part of a broader commercial strategy can fall under CASL’s scope.
What Are the Rules for Sending CEMs?
To legally send a CEM in Canada, your business must ensure the message meets three core requirements:
1. Consent
Before sending a CEM, you must have the recipient’s consent. This can be:
- Express consent, which is directly obtained from the recipient.
- Implied consent, which may exist under certain circumstances.
When is Implied Consent Permitted?
Implied consent may apply if:
- You have an existing business or non-commercial relationship with the recipient; or
- The recipient voluntarily gave you their email address (such as on a website or business card), and the message is relevant to their business or role.
If none of the above applies, you must seek express consent.
Express Consent Must:
- Clearly explain why you’re requesting consent;
- Identify the sender or organization requesting consent and provide valid contact details;
- Include a statement explaining that the person can withdraw their consent at any time.
2. Sender Identification
Every CEM must clearly identify the sender (or the party on whose behalf the message is sent). You must also include:
- Your business name;
- A physical mailing address and at least one of the following: phone number, email, or website URL.
This contact information must remain valid for at least 60 days after the message is sent.
3. Unsubscribe Option
All CEMs must include a simple, easy to use unsubscribe method such as a clickable link or reply instruction. When someone opts out, you must process the request within 10 business days.
What Happens If You Don’t Comply?
Non-compliance with CASL can lead to serious consequences:
- Administrative monetary penalties of up to $10 million per violation;
- Civil liability, including class actions;
- In some cases, personal liability for directors and officers.
How Hadri Law Can Help
At Hadri Law, we support Canadian and international businesses with compliance strategies tailored to CASL. We can help you:
- Assess and audit your current electronic marketing practices;
- Identify whether implied consent applies to your audience;
- Create express consent and opt-out systems that meet legal standards;
- Draft and implement CASL-compliant email and marketing policies;