This ebook outlines basic legal requirements for the content of commercial email in Canada. Checklists for avoiding pitfalls are included. The ebook is adapted from content in Internet Law Essentials: Canada’s Anti-Spam Law, published by STP.

Commercial Email Content Requirements and CASLWhat Every Business Communicating With Canadians Needs to Know

Front cover: photo credit: Royal_Rivers via photopin cc

Commercial Email and CASL2

Email has become a primary tool for most businesses to communicate and, for many, to promote themselves or sell products and services. Unfortunately, email can be a double-edged sword. Everyone with an email account knows the frustration of wading through an inbox filled with unwanted commercial email messages, or “spam.”

The Canadian government has responded by creating “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.” This act, known popularly as Canada’s Anti-Spam Law (CASL), takes effect on July 1, 2014.

The act, however, is not limited to the regulation of “spam.” In many ways, the rush to label CASL as an “anti-spam” law is unfortunate, as reputable businesses that do not engage in “spam”—your business, perhaps—may harbour a false sense of security that CASL does not apply to them.

In fact, rather than prohibiting specific instances of problematic behavior, CASL generally prohibits the sending of commercial electronic messages (CEMs) except where a person or company has received consent and the CEM includes certain content as set out under CASL.

What this means in practical terms is that every business communicating with Canadians—including U.S. and foreign companies—must understand CASL’s requirements. The alternative is to risk CASL’s significant penalties, including personal liability for directors and officers.

This ebook will help you understand some of the basics of how CASL applies to your emails so that you can comply with the act’s requirements and continue to use email safely in your business.

introduction

Commercial Email and CASL 3

Introduction 2

What Identifying Information Must Be Included in a CEM? 4

Self-Assessment Checklist for Identity and Contact Information 5

Does Your CEM Include an Unsubscribe Mechanism? 5

Self-Assessment Checklist for Unsubscribe Mechanism 6

Summary 7 About the Authors 8

contents

Image above: photo credit: ganderssen1 via photopin cc

Commercial Email and CASL4

CASL prohibits sending CEMs that do not contain accurate identity and contact information. To comply, a CEM must:

• identify the sender, and if different from the sender, the sending agent.

• Set out information to allow the recipient to contact either the sender or the sending agent.

The identity and contact information must be set out clearly and prominently in the message. Where it is impractical to include this information in the message, it is permissible to include a hyperlink to a webpage containing this information, provided the hyperlink is clearly and prominently set out in the message and that the website is readily accessible at no cost.

The contact information must include the sender’s or sending agent’s mailing address and at least one of the following:

• The sender’s or sending agent’s telephone number providing access to an agent or voice messaging system.

• The sender’s or sending agent’s email address.

• The sender’s or sending agent’s web address.

This contact information must be valid for 60 days.

Industry Canada has suggested that only persons who play a material role in the content of the message or the list to whom the message is sent are required to be identified as senders or senders’ agents; however, where a CEM is sent on behalf of multiple senders, such as affiliates, all senders must be identified in the CEM.

What IdentIfyIng InformatIon must be Included In a cem?… the truth, the whole truth

Image above: photo credit: ario_ via photopin cc

Commercial Email and CASL 5

1. Does the CEM identify the person(s) who sent the message?

2. Does the CEM identify the person(s) on whose behalf the message is sent (if different from the sender)?

3. Does the CEM include the sender’s regular mail (not email) address?

4. Does the CEM include a telephone number providing access to an agent or voice messaging system, an email address, or a web address for the sender or the person on whose behalf the message was sent?

5. Does the CEM identify the person(s) who materially contributed either to the content of the message or to the list to which the message is sent?

6. Is the contact information valid for 60 days?

Yes No

self-assessment checKlIst for identity and contact information

does your cem Include an unsubscrIbe mechanIsm?… make is simple, make it clear

CASL sets out a number of requirements for unsubscribe mechanisms in CEMs. In addition to being clearly and prominently displayed, the unsubscribe mechanism must:

• Be at no cost to the recipient.

• Be “readily performed”.

• Be by the same electronic means by which the CEM was sent, or if not practicable, by another electronic means.

• Specify an electronic address or link to a webpage to which the unsubscribe notification can be sent. This must be valid for a minimum of 60 days after the CEM is sent.

• Enable the recipient to unsubscribe from either all CEMs or a specific class of CEMs.

Commercial Email and CASL6

In the case of an email, the CRTC has suggested that an unsubscribe mechanism including a link to a webpage that allows a recipient to unsubscribe from receiving all or some types of CEMs from the sender would likely be sufficient.

CASL only applies to CEMs and there is no requirement that an unsubscribe mechanism

allow a recipient to unsubscribe from all electronic messages from the sender.

The person receiving the unsubscribe request must give effect to the request without delay, and in any event, no later than 10 business days after the request was sent, without any further action required from the person who sent the request.

self-assessment checKlIst for unsubscribe mechanism

1. Does the CEM contain an unsubscribe mechanism?

2. Is the unsubscribe mechanism capable of being readily performed?

3. Is unsubscribing provided at no cost to the recipient?

4. Is the unsubscribe mechanism available through the same electronic means as the CEM, or if not practicable, by another electronic means?

5. Does the unsubscribe mechanism include an electronic address or link to a webpage that is valid for a minimum of 60 days after the CEM is sent?

6. Does the unsubscribe mechanism enable the recipient to unsubscribe from either all CEMs or a specific class of CEMs?

7. Do you have a system in place across your entire organization to give effect to an unsubscribe request within 10 days?

8. Is the unsubscribe information clearly and prominently set out?

Yes No

Image above cc photo credit: extraface via photopin cc

Commercial Email and CASL 7

This ebook outlines some important steps you can take to ensure your email content complies with the law, but CASL also specifies that you must have the recipient’s consent to send CEMs. For more information on CASL’s consent requirements and about how the law applies to your business, refer to Internet Law Essentials: Canada’s Anti-Spam Law .

In addition, many questions remain as to how CASL will be interpreted by the administrative agencies and by the courts. Given this uncertainty and the comprehensiveness of the regulatory environment imposed by CASL, it may not be possible for you to ensure that your practices are 100 percent compliant.

Therefore, in addition to striving for compliance, you should also ensure that you are in a position to rely on the due diligence defence set out in the act by reviewing all of your existing practices in relation to sending CEMs, and developing CASL implementation and compliance policies.

Be aware that international laws can also govern your commercial emails.Always check the laws in the specific regions from which and to which you are sending messages.

The content of this ebook is a general outline of some areas of compliance and should not be considered a definitive or comprehensive discussion of all legal requirements relating to CEM content.

Stay in Touch with STP

Opt-in to receive email newsletters, whitepapers, checklists, and ebooks like this one by clicking here.

summary

Photo Credit: Dominic Schaefer

Commercial Email and CASL8

about the authors

Andrew Aguilar is a senior associate at McMillan LLP in the firm’s Advocacy and Litigation Group and works out of the firm’s Vancouver office. His practice encompasses a broad range of civil litigation matters, with a focus on Internet law, commercial disputes, shareholder remedies, defamation, and products liability.

Andrew has a particular interest in Internet- and technology-related issues and regularly works with clients to develop and implement strategies to address issues such as online defamation and infringement of intellectual property rights.

Ryan J. Black is Co-Chair, Information Technology, and a partner at McMillan LLP, working out of its Vancouver office in its Technology, IP, and Privacy Group. A former Internet developer, Ryan has unique insight and focus on computer, software and Internet law. His clients include software and Internet developers, video game companies, consumer and industrial goods manufacturers, advertisers, and professional service providers.

Ryan’s practice focuses on commercializing intellectual property, technology-related employment law, and emerging technology issues, as well as corporate and commercial transactions.

Commercial Email and CASL 9

Head Office

Suite 306 - 267 West Esplanade North Vancouver, BC, Canada V7M 1A5

1 800.251.0381

www.stpub.com

Copyright © 2014 Specialty Technical Publishers. All Rights Reserved.This publication does not constitute legal, accounting or other professional advice. STP Specialty Technical Publishers and its authors make no warranties, whether express or implied, regarding the accuracy of any information or materials contained herein or the results of any course of action described herein, and STP and its authors expressly and specifically disclaim the implied warranties of merchantability and fitness for a particular purpose.