- Spam
- The government’s website states: “ spam generally refers to the use of electronic messaging systems to send unsolicited, bulk messages. Spam messages may contain deceptive content, support illegal activities or can also be used to deliver electronic threats such as spyware and viruses.”
- Electronic Message
- is a message sent by any means of telecommunication, including a text, sound, voice or image message.
- Commercial Electronic Message (CEM)
- A CEM is a message sent by an electronic means, such as an email, instant message, tweet, voicemail, or text to another electronic address with, as its purpose or as one of its purposes, to encourage participation in a “commercial activity”.
- Commercial Activity
- A transaction, act, or conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit. The Act lists possible commercial activities as including:
-
- a) offers to purchase, sale, barter or lease goods, a service, land or an interest or right in land;
- b) offers to provide a business, investment, or gaming opportunity;
- c) advertising or promoting these activities; or
- d) promoting a person as doing or intending to do any of these activities.
-
- In practical terms, commercial activities that might apply to registered charities and not-for-profit organizations could include selling lottery tickets for a dream home, tickets to a gala dinner, selling sponsorships for a fundraising golf tournament, electronic newsletters that contain a donation option, and advertising or promotion of these activities.
- Consent
- Under CASL, CEMs cannot be sent (or caused or permitted to be sent) unless the recipient expressly or implicitly consents to receiving the message. The Act sets out two types of consent: express and implied.
- Express Consent
- Express consent means that a recipient has voluntarily agreed to receive a CEM and this consent is documented. Under CASL a person who seeks express consent to send a CEM must:
-
- a) state clearly and simply the purpose or purposes for which the consent is being sought;
- b) provide information that identifies the person seeking consent and, identifies any third party recipient;
- c) give contact information for (about) the person sending the CEM, such as a mailing address and a telephone number to an agent or voice mailbox, or an email or web address of the sender or person on whose behalf the message is sent; and
- d) state that consent can be withdrawn at any time.
-
- Look for samples of express consent forms in Key Provisions. The recipient may give express consent by checking a box on the form they receive, or by entering their email address in response to an invitation to do so. You cannot provide the recipient of a CEM with a pre-checked box nor can you bundle consent for different products into one express consent box.
- Note: it is up to the sender to prove consent.
- Implied Consent
- There are three categories of implied consent. Consent will be implied if:
-
- there is an existing business relationship between the sender and the recipient;
- there is an existing non-business relationship between the sender and the recipient; or
- the recipient has , through “conspicuous disclosure or publication” disclosed their email address without stating that they do not want to receive a commercial email. Publication of an email on a business card or a website out fit into this category.
-
- “existing non-business relationship”
- This relationship is of particular significance for registered charities and not-for-profit organizations. An existing non-business relationship exists where:
-
- the sender is a registered charity and the recipient of the commercial electronic message has donated or performed volunteer work for the registered charity in the preceding two years; or
- the sender is a nonprofit organization (as defined as in the Income Tax Act) and the recipient has been a member in the preceding two years. This includes clubs, associations, or voluntary organizations. The Act has a three-year transition period, which will begin with the coming into force of CASL on July 1, 2014. During this three-year transition, there will be implied consent for parties who are already in an existing non-business relationship. This means that charities and not-for-profit organizations have until July 1, 2017 to obtain express consent from new donors, volunteers and members or convert implied consent to express consent.
-
- Personal Relationship
- CASL states that there is implied consent for the sending of a CEM if there is a “personal relationship”. The regulations define this as “the relationship, other than in relation to a commercial activity, between an individual who sends the message and the individual to whom the message is sent, if they have had an in-person meeting and, within the previous two years, a two-way communication.”
- Unsubscribe Mechanism
- This is a feature that allows the person receiving the CEM to easily, quickly and at no cost to them, indicate that they no longer wish to receive any commercial electronic messages or some class of electronic messages from the sender. See Key Provisions for examples of wording for the unsubscribe feature.
Return to Canada Anti-Spam Legislation Home Page
This page was last updated in June, 2014.
