Legal Definitions - Canadian Anti-Spam Law of 2010: Core Requirements

The Canadian Anti-Spam Law of 2010 (commonly known as CASL) is a comprehensive piece of legislation designed to protect Canadians from unwanted electronic messages. Its core requirements establish strict rules for sending commercial electronic messages (CEMs) to electronic addresses within, or accessed from, Canada.

At its foundation, CASL broadly defines a "Commercial Electronic Message" as any electronic message with a commercial purpose. This includes emails, text messages, instant messages, and certain social media messages that offer to sell, buy, advertise, or promote products, services, businesses, or investment opportunities. An "electronic address" refers to any account used to receive such messages, like an email address, instant messaging account, or telephone number.

For a commercial electronic message to be legally sent under CASL, two main conditions must be met:

• Consent: The sender must have obtained either express or impliedconsent from the recipient. Express consent means the recipient has actively and clearly agreed to receive commercial messages (e.g., by ticking a box on a website). Implied consent can be inferred from an existing business relationship (like a recent purchase) or a public posting of an email address without restrictions. This "opt-in" framework means senders generally need permission before sending commercial messages.
• Compliance with Form and Content: The message itself must adhere to specific requirements. This includes clearly identifying the sender, providing their contact information, and offering a simple, free mechanism for the recipient to unsubscribe from future messages.

There are a few key exceptions where these core requirements do not apply:

• Messages exchanged between individuals who have a genuine personal or family relationship.
• Messages sent to a business contact that consist solely of an inquiry or application directly related to their business activities.

Examples:

• Example 1 (Lack of Consent): A new online bookstore launches and decides to promote its grand opening by purchasing a list of email addresses from a marketing company. They then send out a mass email campaign to everyone on this list, advertising a 20% discount on all books. The recipients on the list have never interacted with the bookstore before.

  Explanation: This action violates CASL's core requirements. The bookstore did not obtain direct express or implied consent from each recipient to send them commercial electronic messages. Even if the recipients had consented to receive messages from the marketing company, that consent does not automatically transfer to a new, unrelated business for its own commercial promotions.

• Example 2 (Implied Consent and Compliance): A customer signs up for a free trial of a streaming service. During the sign-up process, they see a pre-checked box that says, "Yes, I would like to receive occasional updates and special offers related to my streaming preferences." The customer proceeds without unchecking the box. Three months later, after their trial has ended, the streaming service sends them an email promoting a new premium subscription tier, with a clear "Unsubscribe" link at the bottom.

  Explanation: This scenario demonstrates compliance with CASL. The customer provided implied consent by not unchecking the box during sign-up, indicating a willingness to receive promotional offers related to the service. Furthermore, the email includes an easy-to-use unsubscribe mechanism, fulfilling the content requirements of the law.

• Example 3 (Business-to-Business Inquiry Exception): A software developer, looking for new clients, sends a personalized email to the CEO of a small tech startup. The email introduces the developer's expertise in app development and asks if the startup is currently seeking external help for an upcoming project, including a link to their professional portfolio. The email contains no general advertisements or unsolicited offers for unrelated services.

  Explanation: This message would likely fall under one of CASL's exceptions. It is an inquiry sent to a businessperson, and its content is solely an application or inquiry directly related to the recipient's business activities (i.e., potential app development needs). Therefore, the strict consent requirements for a typical commercial electronic message may not apply in this specific business-to-business context.