Canada's Anti-Spam Legislation and Its Impact on US ...
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“there is no blanket exemption for business-to-business communications.” Installing computer programs without express consent (S.C. 2010, c. 23, § 8(1)). Making false or misleading representations in electronic messages, including in the sender and subject lines (S.C. 2010, c. 23, § 75). Collecting email addresses using computer programs without consent (S.C. 2010, c. 23, § 82). Collecting personal information through unauthorized access to a computer system (S.C. 2010, c. 23, § 82). (See An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23).) This Article focuses on CASL's spam prohibition, given its broad applicability and commercial effects. In particular, it discusses: The application of CASL to US businesses. CASL's consent, opt-out, anti-spam, form and content and penalty and enforcement provisions. Strategies for complying with CASL. CASL's impact on transactions and supplier agreements. Recent enforcement actions. US counterpart laws, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and the Telephone Consumer Protection Act (TCPA), comparing their key provisions to CASL. CASL'S BAN ON SPAM Unless a statutory exception applies (see Exceptions from Consent Requirement and CASL Exemptions), CASL prohibits sending a CEM unless: The recipient consents, either expressly or impliedly (see Implied Consent and Express Consent). The CEM complies with certain form and content requirements. (S.C. 2010, c. 23, § 6(1).) If challenged, the CEM's sender bears the burden of establishing consent or that an exception applies (S.C. 2010, c. 23, § 13).
3© 2015 Thomson R euters. All rights reserved. Canada's Anti-Spam Legislation and Its Impact on US Businesses BUSINESS CARD EXEMPTION Similarly, the "business card" exemption applies where both: A recipient has disclosed her electronic address to the sender with- out indicating that she does not wish to receive unsolicited CEMs. The CEM is relevant to the person's business, role, functions or duties in a business or official capacity. In this case, the sender can send CEMs without obtaining express consent. (S.C. 2010, c. 23, § 10(9)(c).) EXPRESS CONSENT A sender of a CEM must obtain express consent from the recipient if it cannot establish implied consent and no exception or exemption applies (see Exceptions from Consent Requirement and CASL Exemptions). Express consent may be oral or written. To obtain CASL-compliant express consent: The person granting the consent must make a positive or explicit indication of consent. According to regulatory guidance, consent must be opt-in consent, meaning that the consumer must take action to give consent. As a result, the common business practice of using an opt-out (or negative option) method for obtaining consent, such as a pre-checked consent box that a consumer has to un-check to signify that she does not want to receive marketing messages, does not comply with CASL. Businesses cannot rely on consents obtained in this manner before CASL came into effect. Express consent cannot be subsumed in or bundled with requests for consents for other purposes. For example, a sender cannot wrap express consent into its general terms and conditions. Further, a sender cannot condition the ability to purchase a good or service on providing express consent to receive CEMs. The request for consent must contain certain information. This information includes the name of the business seeking consent and a statement that the person whose consent is being sought may withdraw consent at any time. “Certain CEMs are entirely exempt from CASL and businesses may send them without obtaining consent or complying with CASL's form and content requirements.” Intra-business communications relating to the business (see Intra- business Communications). CEMs picked up outside of Canada (see CEMs Picked up outside of Canada). Posts on messaging platforms, such as social media sites (see Platform Exemption). Responses to requests, inquiries and complaints (see Responding to Requests, Inquiries and Complaints). Communications that satisfy legal obligations (see CEMs That Satisfy Legal Obligations or Enforce Legal Rights). (Electronic Commerce Protection Regulations, SOR/81000-2-175, § 3.) B2B EXEMPTION One of the most helpful exemptions for businesses is the B2B exemption. Under this exemption, CEMs sent by an employee or representative of one business to an employee or representative of another business are exempt as long as: The businesses have a relationship. The message concerns the activities of the business to which the message is sent. (Electronic Commerce Protection Regulations, SOR/81000-2-175, § 3(a)(ii).) CASL does not provide any guidance on what is a relationship in this context or the meaning of the phrase "the message concerns the activities of the business." Despite this lack of guidance, the B2B exemption allows many business-to-business communications to continue without the need to comply with CASL.