Lexpert US Guides

14 | LEXPERT • June 2014 | www.lexpert.ca « ANTI-SPAM sages that may be harmful in the sense that they contain some ele- ment of fraud or deceit; rather, CASL prohibits the sending of any "commercial electronic message" (defi ned as any telecommu- nication including text, sound, voice or image) to an electronic ad- dress without the recipient's prior consent, where the purpose of the message is to encourage participation in a commercial activity. "In other words, CASL will cover all sorts of marketing and advertising campaigns that depend on electronic messages," Broad notes. All of this is not to say that the laws in Canada and the US will be completely at odds. " ere are important similarities between the Canadian legislation and CAN-SPAM in the sense that the legislative purposes are the same. But the fact remains that CAN-SPAM is opt-out legisla- tion. CASL, on the other hand, is based on an opt-in principle premised on express consent, with certain exceptions allowing implied consent for existing business relationships, personal and family relationships, business-to- business emails and third-party refer- rals. " ese include a broad exemption for business-to-business CEMs where a relationship with the recipient ex- ists; a one-time exception for a CEM based on a referral made by someone who has a prescribed relationship with the recipient; a partial exemption for CEMs to recipients with whom the sender has had an existing business relationship in the previous two years; a partial exemption for CEMs sent to addresses that have been conspicu- ously published or directly disclosed by the recipient to the sender. " ere is also an exception for email addresses that have been posted online without a notice that the poster does not wish to receive unsolicited commercial email. Where the exceptions do not ap- ply, the sender must obtain the express consent of the recipient by setting out the purpose for which the consent is sought, information identifying the per- son seeking consent, and other informa- tion that may be required by regulation. In addition to the exceptions, the business community has a transition period that could run to 2017 before a business must switch to opt-in consent for its existing customers. " e upshot is that companies engaged in business-to-business communications can take some comfort from the scope of the exemptions. "But if you're in the consumer space, not much has changed from the initial incarnation of the legislation," says David Elder in Stikeman Elliott LLP's Ottawa offi ce. "I'm telling clients to be afraid, be very afraid." A great deal of the apprehension arises because CASL's consent provisions are quite rigid. " e statute is very clear that consent is required before a CEM can be sent, which means that businesses can't even send an email asking for consent without fi rst obtain- To be sure, US companies have lived with their version of anti- spam legislation in the form of the CAN-SPAM Act. But CASL is a marked departure from CAN-SPAM. "Whereas we sought to make sure that our system of privacy legislation was similar to that in the US, we have deliberately gone the other way with our anti-spam legislation," says Martin Kratz of Bennett Jones LLP's Toronto and Calgary offi ces. Like its American counterpart, CASL seeks to prevent consum- ers from being misled, gives consumers the right to decline receipt of unwanted emails and seeks to reduce the costs for businesses that have to manage an infl ux of spam. But the legislation does so in a manner that likely makes it the world's most comprehensive attempt to restrict unsolicited email. "" e intentions are good, but the implementation is very com- plex," says Paul Broad in Hicks Morley Hamilton Stewart Storie LLP's London, Ontario offi ce. "" e legislation is structured as a complete prohibition out of which exceptions are carved, and that is a very hard compliance exercise because, among other things, most existing consents will not suffi ce." Indeed, CASL is a much more expansive and burdensome piece of legislation than CAN-SPAM. Canada's statute applies not only to email but to other forms of electronic communications, includ- ing instant and text messaging, and social media. As well, CASL applies not only to business-to-consumer messages, but also af- fects business-to-business messages. "As currently written, the law will have a signifi cant impact on customer and prospect communications across a wide spectrum of Canadian business," says David Young of Toronto's David Young Law. Unlike any legislation elsewhere, CASL is not limited to mes- "… CASL's consent and unsubscribe strictures apply to foreign messages such as those sent by foreign organizations to Canadian customers or proposed customers and to messages that are stored on foreign servers and accessed from Canada. And the liability is strict. It does not depend on intent or foreseeability." Barry Sookman > McCarthy Tétrault LLP

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