Compliance with Canada’s Anti-Spam Legislation (CASL) in Email Marketing

Overview of CASL in Email Marketing

Canada’s Anti-Spam Legislation (CASL) is a federal law designed to protect consumers and businesses from unsolicited commercial electronic messages (CEMs), including email, SMS, and certain social media messages. CASL applies to any organization—inside or outside Canada—that sends CEMs to Canadian recipients. The law is considered among the strictest of its kind globally, with significant penalties for non-compliance.

Key Requirements for Compliance

To send marketing emails legally under CASL, organizations must meet three core requirements:

• Obtain Consent: You must have either express or implied consent from the recipient before sending a CEM. Express consent is explicit permission (e.g., through a sign-up form), while implied consent may apply in limited circumstances, such as an existing business relationship. Consent must be documented and verifiable.
• Identify the Sender: Every CEM must clearly identify the sender and provide accurate contact information, including a valid mailing address (valid for at least 60 days after the message is sent) and at least one other method of contact (e.g., email, phone).
• Provide an Unsubscribe Mechanism: Each CEM must include a simple, free, and promptly accessible way for recipients to unsubscribe from future messages. Unsubscribe requests must be processed within 10 business days.

Definition of a Commercial Electronic Message (CEM)

A CEM is any electronic message that encourages participation in a commercial activity, such as offers to purchase, sell, or promote products, goods, services, or businesses. Messages that are purely informational or transactional (e.g., order confirmations, shipping notices) generally do not qualify as CEMs.

Consent: Express vs. Implied

• Express Consent: The recipient has clearly agreed to receive CEMs (e.g., by checking a box on a website form). This consent does not expire unless the recipient withdraws it.
• Implied Consent: Applies in specific situations, such as an existing business relationship (e.g., a recent purchase or contract) or a recipient who has conspicuously published their contact information without a “no spam” notice. Implied consent is time-limited (generally two years from the last transaction or inquiry).

Penalties for Non-Compliance

Violations of CASL can result in administrative monetary penalties of up to $1 million per violation for individuals and up to $10 million per violation for businesses. Directors and officers may also be held personally liable in some cases.

Additional Considerations

• Record-Keeping: Maintain records of consent (how and when it was obtained) to demonstrate compliance if challenged.
• Content Accuracy: CEMs must not contain false or misleading information.
• Third-Party Marketing: If using third-party lists, ensure the list provider has obtained proper consent in accordance with CASL.
• B2B vs. B2C: While the core requirements apply to both, there are some nuances for B2B communications, particularly around implied consent.

Practical Steps for Compliance

• Review and update consent practices to ensure all recipients have given valid consent.
• Include clear sender identification and contact information in every CEM.
• Implement a reliable unsubscribe mechanism and honor opt-out requests promptly.
• Train staff on CASL requirements and maintain compliance documentation.
• Consult legal counsel for complex situations or if unsure about compliance.

Summary Table: CASL Compliance Checklist

Conclusion

CASL sets a high standard for email marketing in Canada, emphasizing consent, transparency, and respect for recipient preferences. Compliance is not optional—failure to adhere can result in severe penalties. Organizations should regularly review their practices and seek legal advice to ensure ongoing compliance with CASL and related Canadian privacy laws.