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Canada and the new anti-spam law - the requirements

27 February 2014

When and what?

On 1 July, Canada's new anti-spam legislation (CASL) comes in to force.

CASL states that commercial emails will be unlawful unless the recipient has provided their consent.

Express or implied consent?

Generally, consent will have to be express (ie opt in with clear information about how personal information will be provided).

Implied consent will be lawful in limited circumstances; for example, where there is already an existing business relationship. However, this is problematic because implied consent relied upon on the basis of an existing business relationship will expire:

  • after two years from the purchase or lease of a product, goods, a service, land or an interest in land
  • after six months after an inquiry or application.

Implied consent may though be relied on if the recipient has conspicuously published their email address (ie on their company website) provided that there is no statement that the person does not wish to receive unsolicited commercial emails and the message is relevant to the person in their professional/business capacity only. 

A practical tip for non-consumer facing Canadian businesses may be to insert a field in the CRM database which indicates whether or not that person's email address is 'conspicuously published' - if it is there will be no need to worry about renewing consent after two years/six months.

Prescribed information

Regardless of whether express or implied consent is obtained, the contents of the email message must:

  • identity the person who sent the email and the person, if different, on whose behalf it is sent
  • set out information enabling the recipient to easily contact the person who sent the email
  • set out an unsubscribe mechanism which must: be at no cost to the recipient; be available by the same electronic means by which the message was sent or if using those means is not practicable another electronic; and specify an email address or link to a website that can be accessed through a web browser to which the opt-out may be sent.

This article was written by Janine Regan.

For more information please contact Janine on +44 (0)20 7427 6798 or janine.regan@crsblaw.com.