Canada's Anti-Spam Legislation: What you need to know
Canada’s new anti-spam legislation will transform the way you use email and other electronic messages to connect with your customers.
A key question to ask yourself is the following: Is the message I am sending a commercial electronic message (CEM)? Is one of the purposes to encourage the recipient to participate in commercial activity?
When determining whether a purpose is to encourage participation in commercial activity, some parts of the message to look at are:
These parts of the message are not determinative. For example, the simple inclusion of a logo, a hyperlink or contact information in an email signature does not necessarily make an email a CEM. Conversely, a tagline in a message that promotes a product or service that encourages the recipient to purchase that product or service would make the message a CEM.
- the content of the message
- any hyperlinks in the message to website content or a database, and
- contact information in the message.
Some examples of CEMs include:
- 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 a person, as being a person who does anything referred to above, or who intends to do so.
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There are three general requirements for sending a commercial electronic message (CEM) to an electronic address. You need (1) consent, (2) identification information and (3) an unsubscribe mechanism.
1 - Consent
There are two types of consent under CASL - express and implied.
Consent can be obtained either in writing or orally. In either case, the onus is on the person who is sending the message to prove they have obtained consent to send the message.
Some key considerations that may make tracking or recording consent easier, and therefore, may make it easier to prove consent. They are:
- whether consent was obtained in writing or orally,
- when it was obtained,
- why it was obtained, and
- the manner in which it was obtained.
2 - Identification
You must identify your organization when a commercial electronic message (CEM) is sent.
Where it is not practicable to include this information in the body of a CEM, then a hyperlink to a webpage containing this information is an acceptable practice as long as the webpage is readily accessible at no cost to the recipient of the CEM. The link to the webpage must be clearly and prominently set out in the CEM.
3 - Unsubscribe
The question under this heading relates to the third requirement - unsubscribe mechanism
Under CASL, you must include an unsubscribe mechanism in the commercial electronic messages (CEMs) that you send. For example, a CEM sent via SMS may state that an end-user can unsubscribe by texting the word "STOP." Another possibility is a hyperlink that is included clearly and prominently in an email that allows the end-user to unsubscribe by simply clicking it. The hyperlink may also be to a webpage that is readily accessible without delay and is at no cost to the recipient.
You can set up your unsubscribe mechanism in many different ways. It can be broad or very granular. For example, you can offer a choice to the recipient, allowing them to unsubscribe from all or just some types of CEMs your organization sends.
A key aspect is that an unsubscribe mechanism must be "readily performed." It should be simple, quick and easy for the end-user.
We hope you have found this month's edition of Point of View to be helpful and informative. Look out for our next instalment in early Fall as we continue to deliver Point Alliance news, and explore additional IT opportunities.
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