Canada's new Anti-Spam Legislation (CASL) was enacted in December 2010, and is slated to enter into force in 2014. A part of Canada's Strategy for the Digital Economy, the Act is intended to promote e-commerce by deterring spam, identity theft, phishing, spyware, viruses, and botnets, as well as misleading commercial representations online. The Act creates new offences, enforcement mechanisms and penalties to address these online threats.
Canada is the last of the G-8 countries to introduce an over-arching legislative framework to address spam, which continues to represent approximately 80% of all global e-mail traffic.
Canada has distinguished itself, however, in making its legislation tough. The Act's consent standards are higher than those in the U.S. CAN-SPAM legislation. Moreover, the Act's significant penalties have led some to nickname it "Canada's $10 million anti-spam law".
The Act applies to "electronic messages" and "electronic addresses" applying broadly to any means of telecommunication, including text, sound, voice, or image, via e-mail, instant messaging, telephone or "any similar account", which could include social media postings.
Reach Outside of Canada
The Act has considerable extra-territorial reach. Its anti-spam provisions apply to messages where "a computer system located in Canada is used to send or access" the electronic message – catching emails sent, for example, in the United States, but received in Canada.
Because of the above reach outside of Canada, and because the Act goes further than similar legislation in other countries, CASL effectively raises the bar for online communications that may flow into Canada.
Impact for Online Business Communications
This new legislation will affect how companies do business online in Canada. Proactive businesses can use the lead time prior to the Act's entry into force as a transition period to prepare for compliance. For example:
- All organizations that send commercial email to clients or prospects will need to review their online marketing practices, to ensure they comply with new consent, disclosure, and "unsubscribe" requirements.
- Similarly, companies that distribute software and updates/upgrades to their customers will need to review their installation practices and software agreements to meet the new requirements.
- Advertisers and marketers will need to familiarize themselves with how the existing misleading and deceptive representations laws will apply online.
- Advisor to Canadian and multi-national businesses on Canada's Anti-Spam (CASL) and Privacy laws, providing practical solutions to ensure that contracts, customer service standards and corporate policies are CASL and privacy law compliant.
- Our clients include manufacturers, distributors and professional service providers; major retailers; media, entertainment and software companies; customer relationship management (CRM) companies; Internet Service Providers; charities; and associations.
December 5, 2013
The CASL regime is aimed at unsolicited commercial electronic messages (CEMs). It also includes provisions addressing the installation of computer programs, and unfair or deceptive online practices. As it is based on opt-in consent to send CEMs, CASL effectively raises the bar for organizations that have long communicated with customers and other organizations on an opt-out basis. Since CASL is a new regime, contains a private right of action and significant administrative monetary penalties (maximum $10 million), and is broader in scope than the anti-spam laws of the US and other countries, many organizations within and outside Canada have been monitoring its status closely. Some have already begun to take steps and adopt practices intended to allow them to comply with the Act. Read more