The Canadian Anti-Span Law (CASL) is Now in Effect
The Fact vs Fiction of Compliance Concerns
Canada's new anti-spam law, based on Bill C-28, which was passed in December 2010, created rules and restrictions for sending Commercial Electronic Messages (CEM). The law targets spammers, but legitimate email marketers, like us, must pay close attention as the fines and penalties for violations can be significant. The law, which was introduced to help protect Canadians while ensuring that businesses can continue to compete in the global marketplace, officially went into effect on July 1st, 2014. On January 15, 2015, sections of the Act related to the unsolicited installation of computer programs or software come into play.
No organization, including charities and non-for-profit groups, is exempt from Canada’s anti-spam legislation. Specifically, this law affects any individual, business or organization that:
- Sends commercial electronic messages
- Alters transmission data
- Produces or installs computer programs
The law was enacted to stop the following:
- Sending of commercial electronic messages without the recipient's consent, including messages to email addresses and social networking accounts, and text messages sent to a cell phone;
- Alteration of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
- Installation of computer programs without the express consent of the owner of the computer system or its agent, such as an authorized employee;
- Use of false or misleading representations online in the promotion of products or services;
- Collection of personal information through accessing a computer system in violation of federal law (e.g. the Criminal Code of Canada); and
- Collection of electronic addresses by the use of computer programs or the use of such addresses, without permission (address harvesting).
There are three government agencies responsible for enforcement of the law:
- The Canadian Radio-television and Telecommunications Commission (CRTC) to issue administrative monetary penalties for violations of the new anti-spam law.
- The Competition Bureau to seek administrative monetary penalties or criminal sanctions under the Competition Act.
- The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.
It will also allow all three agencies to share information with the government of a foreign state if the information is relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state that is substantially similar to the conduct prohibited by this Canadian law.
The law will also allow individuals and organizations who are affected by an act or omission that is in breach of the law to bring a private right of action in court against individuals and organizations that they allege have violated the law. Once into effect, the private right of action will allow an applicant to seek actual and statutory damages. Statutory damages may not be pursued if the person or organization against whom the contravention is alleged has entered into an undertaking or has been served with a Notice of Violation.
There’s a 3-year transition period until July 1, 2017, during which you can take steps to ensure your email (marketing) list remains compliant under the law.
A website, Fightspam.gc.ca, has been set up by the Canadian government to provide further detail on the law and offers the following Myths and Facts to help people continue to do business under the new law.
Myth: I won’t be able to use my current email list to promote my business.
Fact: You can continue to use email if you have express or implied consent from recipients. During the 36-month transition period, you can continue to use your current email list if you have previously provided your products or services to them and they haven’t told you to stop.
Myth: Consent that was given before the Canadian Anti Spam Law was set is invalid.
Fact: Consent received before July 1, 2014 remains valid and does not expire until the recipient withdraws it.
Myth: This law will stop all spam, including overseas.
Fact: No law will eliminate all spam, including that from overseas. This law allows Canadian enforcement against spammers that do business in Canada.
Myth: Compliance is going to be costly for businesses.
Fact: Businesses that already comply with privacy laws and use common best practices for email marketing will require little effort to comply with the Canadian Anti Spam Law.
Myth: Fines can be as high at $10 Million for sending an email.
Fact: There are no set penalties. The CRTC has a range of enforcement tools that are available from warnings to fines (up to $1 million for individuals and $10 million for businesses).
As always, following best practice email guidelines will help businesses to comply with the law. Should any questions arise as you continue to utilize email marketing, contacting a lawyer familiar with the law would be advised. The law in its entirety can be accessed here.