This series of InfoGraphics created by the Canadian Government to explain Canada’s Anti-Spam Legislation and they also contain a good explanation of CASL and what you need to do to comply.
But keep in mind that this is only a synopsis, some specific conditions may require you to refer to the Legislation and its Regulations. Full text of Canada’s anti-spam law.
What is CEM?
Under Canada’s Anti-Spam Legislation, or a CEM is a message that encourages participation in a commercial activity, including, but not limited to an offering, advertising, or promoting a product, a service, or a person.
For example:
- Sms text message
- Instant messaging
Is My Existing Express Consent Valid?
Express consent cannot be obtained via a CEM after CASL comes into force unless you already have implied consent as defined in Canada’s Anti-Spam Legislation.
Express Consent Versus Implied Consent
Implied consent – Existing business relationship
The recipient has made or enquired about, purchase or lease of goods, services, land or interest in land, a written contract, or the acceptance of a business, investment, or gaming opportunity from you.
Implied consent – Existing non-business relationship
You are a registered charity, a political party, or a candidate, and the recipient has provided you a gift, a donation, or volunteer work.
Implied consent – Recipient’s e-mail address was conspicuously published or sent to you
The address was disclosed without any restrictions and your message relates to the recipient’s functions or activities in a business or official capacity.
Express consent – Valid consent given in writing or orally
The recipient gave you a positive or explicit indication of consent to receive commercial electronic messages. Your request for consent set out clearly and simply the prescribed information.
Keep records
Keep records of how you obtained implied or express consent since in both cases you as the sender have the onus to prove consent.
Time limit
Express consent is not time-limited unless the recipient withdraws his or her consent.
Implied consent is generally time-limited
However, it is typically a period of 2 years after the event that starts the relationship (e.g. purchase of a good). For subscriptions or memberships, the period starts on the day the relationship ends.
Know Your Responsibility When Managing Consent
- Company A can obtain valid express consent to send commercial electronic messages (CEMs) for their own use as for yet-to-be-determined third parties they will work with in the future.
- Company A can share the recipient’s electronic address with Companies B and X.
- Companies A, B, and X can all send CEMs to the recipient using the express consent obtained by Company A. Companies B and X must identify in their CEMs that they received the express consent to send the CEM from Company A.
- Most importantly, the recipient must be able to withdraw their express consent from ANY of these companies by unsubscribing from receiving ANY or ALL CEMs. Company A needs to notify parties of an unsubscribe request that relates to them and Companies B and X have an obligation to notify Company A of any to unsubscribe request they receive relating to the express consent acquired by Company A.
Information to be included in a CEM
Identification – Identify your business name and the name of anyone else on whose behalf or business you are sending the message.
Contact Information – You must include your mailing address. Similarly, you must also include one of the following:
- A phone number to access an agent or a voice messaging system
- An email address
- A web address for you or the person on whose behalf you are sending the message
Personal Relationship Exemption
Two-way communications where the sender is an individual and does not send commercial electronic messages on behalf of a company and the recipient is an individual.
What you need to consider before relying on the personal relationship exemption
In past communications, did you share the same:
- Interests
- Experiences
- Opinions
- Information
Proof – Be able to prove this relationship with your past communications, if necessary.
Real Identity – Know the real identity of each other (as opposed to only communicating by using an alias or a virtual identity).
Social Media – The mere use of buttons available on social media websites (such as clicking on “like,” voting for or against a link or a post, accepting someone as a “friend,” or clicking to “follow” someone) will generally be insufficient to constitute a personal relationship.
You can find the original post on the CRTC website.
