Communicating Electronically: Staying Abreast of Anti-Spam Laws

by J.B. Maverick

2 min read

Canada’s anti-spam laws came into force in 2014, but they are still relatively unknown to the general public. Find out what you need to know to make sure your small business doesn’t run afoul of the new rules when you use a mailing list to send out email marketing.

Canada’s Anti-Spam Legislation

Canada’s Anti-Spam Legislation came into effect on July 1, 2014. Additional measures concerning malware and viruses were added in January 2015. A final element, the right to individual private right of action will come into force in January 2017. Essentially, CASL sets out three rules that every business must follow when sending out email messages via a mailing list:

  • A business must have the consent – direct or implied – of the person receiving the message to send the electronic communication.
  • A business must clearly identify itself as the sender of the message.
  • The message must include a mechanism that allows the recipient to unsubscribe from the mailing list.

The Canadian Radio-television and Telecommunications Commission is in charge of enforcing the law. Complaints about unsolicited emails may be investigated by the CRTC to determine if there has been a violation of CASL. If your business violates CASL, the CRTC has many ways of enforcing the law. As such, there are no automatic penalties for violations. The CRTC judges each file on a case-by-case basis, taking into consideration the exact nature of the violation, your business’s past history with CASL, your ability to pay a penalty, and whether you benefited financially from the violation. Under CASL, the most serious violations can result in fines up to $1 million for individuals and $10 million for businesses. Starting in July 2017, civil cases will also be able to be brought before the courts.

The Kellogg Canada Case

A recent high-profile case involving the cereal company Kellogg Canada gives some insight into what the actual enforcement of CASL may look like in the future. The settlement of the case indicates that Kellogg agreed, in August 2016, to pay a fine of $60,000 for alleged violations of CASL. Specifically, the CRTC has determined that, “from 1 October 2014 to 16 December 2014, inclusively, messages were allegedly sent by Kellogg and/or its third party service providers during the period of 1 October 2014 to 16 December 2014 to recipients without consent of their recipients.”Two elements stand out from this settlement. First, the fine of $60,000, for a company as large as Kellogg Canada, is relatively low and far removed from the $10 million threshold in the law. Second, a careful reading shows that Kellogg Canada was likely using a third-party service provider to send the emails, but it was still held directly liable. This element is a caveat for small businesses who use publicity firms to send out their emails: Make sure they are complying with CASL.

References & Resources

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