The final two stages of Canada’s Anti-Spam Legislation (CASL) will come into effect on July 1, 2017. This will end the transitional period of July 1, 2014 to July 1, 2017 and introduces the private right of action.

Since July 1, 2014, organizations have been operating within the transitional period to send commercial electronic messages (CEMs) based on implied consent. If an organization has a pre-existing business or non-business relationship with a contact any time prior to July 1, 2014, there exists implied consent to send the contact a CEM. The transitional period has been used by organizations to obtain express consent from contacts to send CEMs.

CEMs

The Government of Canada defines CEMs as “a message whose purpose is to encourage participation in a commercial activity.” CASL does not apply to the following:

  • Non-commercial activity
  • Voice, facsimiles or auto-recorded phone calls (robo-calls)
  • Broadcast messages including tweets and posts


The Canadian Radio-television and Telecommunications Commission (CRTC) provides the following examples of CEMs:

  • Offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
  • Offers to provide a business, investment or gaming opportunity;
  • Promoting a person, including the public image of the person, as being a person who does anything referred to above, or who intends to do so.

In order to send a CEM to an electronic address, the following is required:

  1. Consent
  2. Identification information
  3. An unsubscribe mechanism

End of Transitional Period

The transitional period will end on July 1, 2017, and sending CEMs based on implied consent will be subject to the limitation period of two years or six months; creating a more restrictive time within which to send a CEM to a contact based on implied consent.

On July 1, 2017, both individuals and businesses who are affected by contraventions of CASL will be able to seek monetary remedy in a court proceeding. If there is a breach of the CEM provisions, the liability can be $200 for each breach not exceeding $1,000,000 for each day on which the breach occurred. While CASL does not expressly include class actions, it is anticipated that the private right of action creates the possibility for groups to pursue class actions for CASL violations.


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