Pillsbury Winthrop Shaw Pittman

New Canadian anti-spam rules to take effect 1 July 2014

By Catherine D Meyer, Deborah S Thoren-Peden, Michael P Heuga and Amy L Pierce

Businesses that use ‘commercial electronic messages’ to market to customers and prospective customers in Canada should be aware of Canada’s new anti-spam rules, which require, among other things, the sender to obtain consent from the recipient before sending the message and the message itself to identify the sender and provide instructions enabling the recipient of the message to withdraw consent to receive such messages.

Canada’s anti-spam law, which was originally passed in 2010 and is unofficially called ‘CASL’, will begin to go into effect on 1 July 2014. Those doing business in Canada should review and update their electronic communication practices ahead of the effective date to ensure that they have the consent required by the new law from individuals and businesses before sending emails, text messages or instant messages to those ‘persons’. The law applies to messages sent or accessed using a computer system located in Canada, and penalties include administrative fines up to $1m for individuals and $10m for other persons. A private right of action lies to recover actual damages of up to $200 for each violation (not exceeding $1m for each day on which a violation occurred) provided the action is brought within three years.

CASL applies to any ‘commercial electronic message’ (CEM), which includes any communication that has as its purpose (or one of its purposes) to encourage participation in a commercial activity, including advertising or offering to purchase, sell, lease or barter goods or services or to provide a business, investment or gaming opportunity, regardless of whether there is an expectation of profit. A message that requests consent to send a message offering to provide a business, investment or gaming opportunity is also a CEM. The law covers more than just emails, extending to any communication transmitted to an instant messaging account, telephone account or other similar account…

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