Kara Sears
Canada's Anti-Spam Law (CASL) is one of the toughest laws of its kind in the world. It establishes rules for the sending of commercial electronic messages (CEMs) and the installation of computer programs. CASL also prohibits the unauthorized alteration of transmission data. The law requires Canadian and global organizations to obtain consent from recipients before sending commercial electronic messages (CEMs) within, from, or to Canada. It also sets out requirements for the content of CEMs, including the need for sender identification and an unsubscribe mechanism. CASL has been effective in reducing spam in Canada and has resulted in improvements for both consumers and businesses.
| Characteristics | Values |
|---|---|
| Name | Canada's Anti-Spam Law (CASL) |
| Purpose | Protect consumers and businesses from the misuse of digital technology, including spam and other electronic threats. |
| Scope | Applies to everyone who sends electronic messages for commercial purposes, including individuals, incorporated and unincorporated businesses, and not-for-profit organizations. |
| Definition of Commercial Electronic Message (CEM) | Any electronic message that encourages participation in a commercial activity, such as emails with coupons or advertisements. |
| Consent | Required before sending a CEM. The message must include the name of the sender, contact information, and an unsubscribe mechanism. |
| Exemptions | CEMs between family and friends, within or between organizations with an existing relationship, and messages sent in response to a request, inquiry, or complaint. |
| Compliance | Requires significant work for organizations, including reviewing legal implications, identifying affected resources, and addressing gaps in people, processes, technology, and governance. |
| International Cooperation | Enabled Canada to actively share information and cooperate in global enforcement actions through partnerships with organizations like the Unsolicited Communications Enforcement Network (UCENet). |
| Impact | Led to a decrease in spam reaching Canadians and contributed to a decline in the global spam rate. |
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What You'll Learn
Commercial electronic messages (CEMs)
Canada's Anti-Spam Law (CASL) is one of the toughest laws of its kind globally, making its application and interpretation particularly challenging. The law applies to all electronic messages (e.g. email, texts) that organisations send in connection with a "commercial activity".
CASL requires Canadian and global organisations that send commercial electronic messages (CEMs) within, from, or to Canada to obtain consent from recipients before sending messages. A CEM is any electronic message that encourages participation in a commercial activity, such as an email containing a coupon or information about a promotion or sale. CEMs can include emails, instant messages, SMS, and some social media communications. They are sent to an electronic address, including email addresses, instant message accounts, phone accounts, and social media accounts.
To be considered a CEM, the message must encourage recipients to take part in some type of commercial activity, including offers to purchase, sell, barter, or lease a product, good, service, land, or interest in land, or provide a business, investment, or gaming opportunity. However, a message that includes hyperlinks to a website or contains business-related information does not qualify as a CEM.
To send a CEM, organisations need express consent from recipients, either orally or in writing. Written consent can be electronic. All messages must include the name of the sender, the person on whose behalf the message is sent (if different), the sender's physical mailing address, and either a telephone number, email address, or website URL. Messages must also include a free unsubscribe mechanism, and unsubscribe requests must be processed without delay and within 10 business days.
There are some exceptions to the rule. For example, CEMs sent between family and friends or within or between organisations with an existing relationship are exempt. Messages sent in response to a request, inquiry, or complaint or solicited by the recipient are also exempt, as long as they comply with the anti-spam laws of the recipient's country.
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Rules for the installation of computer programs
Canada's Anti-Spam Law (CASL) is one of the toughest laws of its kind globally, and it applies to all electronic messages, including emails and texts, sent by organisations in connection with "commercial activity". The law requires Canadian and global organisations to obtain consent from recipients before sending commercial electronic messages (CEMs) within, from, or to Canada.
CASL establishes rules for the installation of computer programs, aiming to prohibit the unauthorised installation and use of such programs on another person's computer system. Here are the key rules regarding the installation of computer programs under CASL:
- Consent: CASL requires express consent from the owner or authorised user of a computer system before installing a computer program on that system. This consent must be separate from any license agreement and must specifically address the installation of the program. It should also include a description of any invasive functions that may impact the user's reasonable expectations for their computer system.
- Invasive Functions Disclosure: If a computer program has specified invasive functions, such as collecting user credentials or impacting the system's performance contrary to the user's expectations, additional information about these functions must be disclosed when seeking consent. The person seeking consent must obtain written acknowledgment that the user understands and agrees to these invasive functions.
- Broad Application: The rules apply to all computer programs, including updates and upgrades, unless a specified exception applies. This means that even seemingly harmless programs like cookies fall under CASL's purview.
- Liability and Enforcement: CASL imposes liability on organisations and individuals, including corporate directors and officers, for violations related to the installation of computer programs. The Canadian Radio-television and Telecommunications Commission (CRTC) is responsible for enforcing these rules and has taken action against organisations for alleged violations. Penalties for non-compliance can be severe, with regulatory penalties of up to $10 million per violation for organisations and $1 million per violation for individuals.
- Exemptions: There are some exemptions to the rules. For instance, CASL does not apply to self-installed software. If a user voluntarily installs an app from an app store onto their device, CASL does not govern that installation.
- Telecommunications Service Providers: Telecommunications service providers, as defined by CASL, may install software to protect the security of their network from identifiable threats, but only if the user's conduct indicates consent. For example, if a user disables JavaScript or cookies in their browser, it would not be considered consent for installing certain types of programs.
- Due Diligence Defence: CASL provides a due diligence defence, which means that organisations can take steps to ensure compliance and mitigate potential violations. This includes implementing written contracts, corporate compliance policies, and procedures aligned with CASL requirements.
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Protection of personal information
Canada's Anti-Spam Law (CASL) is one of the toughest anti-spam laws globally, making its application and interpretation particularly challenging. The law applies to all electronic messages sent by organisations in connection with "commercial activity". It requires Canadian and global organisations to obtain consent from recipients before sending commercial electronic messages (CEMs).
CASL defines a CEM as any electronic message that encourages participation in a commercial activity, including emails, SMS text messages, instant messages, and messages sent through social networks. CEMs must be sent to an electronic address and must include the name of the sender, the person on whose behalf the message is sent, and contact information (mailing address and either a phone number or email address).
To comply with CASL, organisations must obtain express consent from recipients, either orally or in writing. Written consent can be electronic. Messages sent without the required consent are subject to serious penalties, including criminal charges, civil charges, personal liability for company officers and directors, and penalties of up to $10 million.
In addition to the consent requirements, CASL also sets out rules for the installation of computer programs. It prohibits the installation of certain invasive computer programs without the express consent of the owner or authorised user of the computer system. This prohibition applies if the computer system is located in Canada or if the person is in Canada at the relevant time.
The protection of personal information is a key aspect of CASL. The law requires organisations to protect the personal information of individuals and comply with privacy laws. The Personal Information Protection and Electronic Documents Act (PIPEDA) is Canada's federal private sector law that governs the collection, use, and disclosure of personal information. PIPEDA defines personal information broadly as "information about an identifiable individual," including name, address, phone number, age, sex, ethnicity, religion, education, health, and financial information.
Organisations must perform Privacy Impact Assessments before processing certain types of personal information or transferring it out of the province. Non-compliance with PIPEDA can result in fines of up to CAD 25,000,000 or four per cent of worldwide turnover for the preceding fiscal year, whichever is greater.
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Compliance for businesses
Canada's Anti-Spam Legislation (CASL) protects consumers and businesses from the misuse of digital technology, including spam and other electronic threats. It also helps businesses stay competitive in a global, digital marketplace.
CASL establishes rules for the sending of commercial electronic messages (CEMs) and the installation of computer programs. CEMs include emails, SMS text messages, instant messages, and messages sent through social networks. A CEM is defined as a message that encourages participation in a commercial activity, including offers to purchase, sell, barter, or lease a product, service, land, or business opportunity.
To comply with CASL, businesses must ensure that they obtain consent before sending CEMs. This can be done by having an existing business or non-business relationship with the recipient or by obtaining express consent through a referral. The referral must be made by an individual who has a relationship with the sender and the recipient of the CEM, and the CEM must include the full name of the individual who made the referral and a statement that it is being sent as a result of that referral. It is important to note that the onus is on the sender to prove they received consent.
Businesses must also provide identifying information and an unsubscribe mechanism in their CEMs. This information must be conspicuously published and readily available on the user interface.
Additionally, CASL requires businesses to address any gaps in people, process, technology, and governance. This may include reviewing legal implications, consent and unsubscribe methods, electronic communication practices, and cross-marketing initiatives. Businesses should also conduct marketing due diligence and market analysis to develop compliant customer experiences and revenue growth strategies.
It is important for businesses to develop an implementation plan that can be used by all stakeholders, including business unit employees, legal counsel, risk and compliance teams, and the internal audit function. They should also assess potential non-compliance risks and develop risk assessment and reporting frameworks to mitigate them.
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How to report spam
Canada's Anti-Spam Law (CASL) is one of the toughest laws of its kind in the world. It applies to all electronic messages (email, texts, instant messages, and messages sent through social networks) that organisations send in connection with a "commercial activity".
Under CASL, electronic messages can include emails, SMS text messages, instant messages, and messages sent through social networks. A commercial electronic message (CEM) is any electronic message that encourages participation in a commercial activity, such as an email that contains a coupon or tells customers about promotions, offers, business opportunities, or events.
CASL requires that all CEMs include the name of the person sending the message, the contact information of the sender (mailing address and either a phone number or an email address), and the name of the person on whose behalf the message is sent, if different. All messages must also include a mechanism that allows the recipient to unsubscribe at no cost.
To report spam under CASL, Canadians can use a web-based form or forward their spam email directly to [email protected]. The Spam Reporting Centre, established by the government, accepts reports of commercial electronic messages sent without consent or with false or misleading content. It is important to note that the Centre will not investigate all submissions but will use the information to identify enforcement targets.
If you have been threatened, are a victim of a crime, or fear for anyone's safety, you should contact your local law enforcement.
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Frequently asked questions
Canada's Anti-Spam Law (CASL) is a law that establishes rules for the sending of commercial electronic messages (CEMs) and the installation of computer programs. It also prohibits the unauthorised alteration of transmission data.
A CEM is any electronic message that encourages participation in a commercial activity, such as an email that contains a coupon or advertises a promotion.
CASL requires senders to obtain consent from recipients before sending a CEM. All messages must include the name of the sender, contact information, and an unsubscribe mechanism.
