Skip to main content

Publications

Oct 2014
28
October 28, 2014

Companies can now be fined in Canada for texting unsolicited marketing materials


If your company sends text or email marketing messages to Canadian residents it now faces a new, stringent Canadian anti-spam law. The law prohibits unsolicited “electronic messages” to computers and phones in Canada, and carries large fines for non-compliance.

Canada’s Anti-Spam Legislation (“CASL”) took effect July 1, 2014. It prohibits sending, causing or permitting an “unsolicited electronic message” to be sent to a Canadian resident unless the recipient has consented to receiving the message; this includes text messages. Further, the message must include: (1) the name and contact information of the sender, or the person on behalf of whom the message was sent; and (2) a mechanism for unsubscribing from future communications allowing the recipient to unsubscribe at no cost and via the same means by which the sender sent the message.  Canada’s new “opt-in” model will differ significantly from the United States’ opt-out model, and being outside of Canada will not shield your company from liability: it applies extraterritorially.

Organizations and individuals who violate CASL may face significant administrative fines – up to $1 million for an individual and up to $10 million for an organization – and starting in July 2017 organizations and individuals are subject to private lawsuits under CASL. Given the potential fines involved with violations, U.S. companies that operate under the more permissive Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003 or the Telephone Consumer Protection Act will want to ensure they are compliant with CASL before it becomes effective.

Overall, Canada’s new opt-in consent requirement has the potential to significantly impair the ability of U.S. companies to send promotional text messages to Canadian customers. It will also require greater care with other electronic communications with Canadian residents.

If you have questions, please contact Jay Yelton (269.276.8130 or jyelton@wnj.com), Dawn Ward (616.396.3039 or dward@wnj.com) or Anissa Hudy (248.784.5133 or ahudy@wnj.com).

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.

ACCEPTCANCEL

Text

+ -

Reset