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Key Differences between US and Canadian Anti-Spam Laws
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4. Unsubscribe Mechanism: The CAN-SPAM Act requires that every CEMM contain an unsubscribe mechanism for the recipient to use to opt-out of receiving further emails. The unsubscribe mechanism can be in the form of a “functioning return electronic mail address or other Internet based mechanism” contained within the CEMM or a “list or menu” from which the recipient may chose not to receive further messages from the sender, and must remain active for the recipient to use for at least 30 days after the original CEMM was sent.[14] Under CASL, the unsubscribe mechanism “must be able to be readily performed” such that it “should be accessed without difficulty or delay, and should be simple, quick, and easy for the consumer to use,”[15] and the unsubscribe mechanism must remain active for at least 60 days.[16] Under the CAN-SPAM Act, the sender of the communication or “any person acting on behalf of the sender” must act on the request to unsubscribe within 10 business days of receiving it,[17] which requirement is identical under CASL, s. 11(3). “CAN-SPAM requires that a CEMM include “clear and conspicuous” identification that the message is an advertisement or solicitation[18] while CASL prohibits unsolicited CEMs, unless the recipient has consented to receiving it (by express or implied consent).[19]” 6. Liability: CASL includes potential vicarious liability for directors and officers of corporations and employers of employees acting within the scope of their employment, and CAN-SPAM is silent on the issue of a director’s, officer’s or employer’s liability. CASL also provides a private right of action to individuals affected by a violation, while CAN-SPAM provides no such right to ordinary individuals. Apart from a state attorney general, only ISPs who have been “adversely affected by a violation” can bring an action under CAN-SPAM.
4. Unsubscribe Mechanism: The CAN-SPAM Act requires that every CEMM contain an unsubscribe mechanism for the recipient to use to opt-out of receiving further emails. The unsubscribe mechanism can be in the form of a “functioning return electronic mail address or other Internet based mechanism” contained within the CEMM or a “list or menu” from which the recipient may chose not to receive further messages from the sender, and must remain active for the recipient to use for at least 30 days after the original CEMM was sent.[14] Under CASL, the unsubscribe mechanism “must be able to be readily performed” such that it “should be accessed without difficulty or delay, and should be simple, quick, and easy for the consumer to use,”[15] and the unsubscribe mechanism must remain active for at least 60 days.[16] Under the CAN-SPAM Act, the sender of the communication or “any person acting on behalf of the sender” must act on the request to unsubscribe within 10 business days of receiving it,[17] which requirement is identical under CASL, s. 11(3). “they also both require that the sender provide certain contact information.” 6. Liability: CASL includes potential vicarious liability for directors and officers of corporations and employers of employees acting within the scope of their employment, and CAN-SPAM is silent on the issue of a director’s, officer’s or employer’s liability. CASL also provides a private right of action to individuals affected by a violation, while CAN-SPAM provides no such right to ordinary individuals. Apart from a state attorney general, only ISPs who have been “adversely affected by a violation” can bring an action under CAN-SPAM.
Canada’s Anti-Spam Law (or “CASL”) will be in effect in July 2014, about ten years after the U.S. has enacted its anti-spam law. As a matter of fact, the U.S. enacted anti-spam legislation, entitled Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (the “CAN-SPAM” Act) on December 16, 2003.[1] “While the U.S. has enacted an anti-spam law promoting an opt-out model, Canada has adopted an opt-in model.” How will CASL impact U.S. businesses that want to send promotional emails throughout North America?
Canada’s Anti-Spam Law (or “CASL”) will be in effect in July 2014, about ten years after the U.S. has enacted its anti-spam law. As a matter of fact, the U.S. enacted anti-spam legislation, entitled Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (the “CAN-SPAM” Act) on December 16, 2003.[1] “While the U.S. has enacted an anti-spam law promoting an opt-out model, Canada has adopted an opt-in model.” How will CASL impact U.S. businesses that want to send promotional emails throughout North America?
Canada’s Anti-Spam Law (or “CASL”) will be in effect in July 2014, about ten years after the U.S. has enacted its anti-spam law. As a matter of fact, the U.S. enacted anti-spam legislation, entitled Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (the “CAN-SPAM” Act) on December 16, 2003.[1] “Under an opt-in model, the recipient of the promotional email must affirmatively give the organization permission to send information about new products or sales.” How will CASL impact U.S. businesses that want to send promotional emails throughout North America?
Canada’s Anti-Spam Law (or “CASL”) will be in effect in July 2014, about ten years after the U.S. has enacted its anti-spam law. As a matter of fact, the U.S. enacted anti-spam legislation, entitled Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (the “CAN-SPAM” Act) on December 16, 2003.[1] “Generally, a consumer must click on web site boxes or send an email request to the organization in order to authorize consumer email.” How will CASL impact U.S. businesses that want to send promotional emails throughout North America?
2. Opt-In versus Opt-Out Consent: The main difference between these two pieces of legislation mostly has to do with the different type of model for consent. CAN-SPAM is based on an opt-out consent model, whereby consent to receive email is considered implicit unless the recipient “opts out,” thereby indicating a unwillingness to receive such emails.[6] CASL allows CEMs only if: i) the sender has the express consent of the recipient, or ii) consent is not required (because it is implied or because the message falls under the listed exemptions). Therefore, U.S. businesses, unless they have express consent, an “existing” business relationship with Canadians or their messages are exempt (for instance if the CEM is sent by an employee to another employee of the organization and that concerns the affairs of the organization),[7] will have to use caution before contacting Canadian email or electronic addresses for promotional purposes. “One of the exceptions to compliance with the consent requirements of CASL[8] is if there is an existing business relationship between the parties, which is defined as a business relationship between the recipient and the sender of the message — arising from any of the following activity taking place within the two-year period immediately before the day on which the message was sent:” (a) the purchase or lease of a product, goods, a service, land or an interest or right in land, by the person to whom the message is sent from the sender;[9]
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