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May 2014
28
May 28, 2014

Canada’s New Anti-Spam Law Could Affect U.S. Marketing


If your company sends marketing emails to Canadian residents it will soon face a new, stringent Canadian anti-spam law that prohibits unsolicited “electronic messages” to computers in Canada, and carries potentially large fines for non-compliance.

Canada’s Anti-Spam Legislation (“CASL”) takes effect July 1, 2014. It prohibits sending or causing or permitting to be sent an “unsolicited electronic message” to a Canadian resident unless the recipient has consented to receiving the message and the message includes: (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 its extraterritorial affect may come as a surprise to some U.S. businesses.

Canada’s anti-spam law contemplates both express and implied consent, and sets forth requirements for how one may go about seeking such consent. When seeking express consent, you must simply and clearly communicate to the potential recipient the purposes for which consent is sought, the identity of the person seeking consent, and, if seeking consent on behalf of another, the identity of that other person. Express consent remains valid unless and until the recipient withdraws his or her consent.

Consent may be implied in some situations, including for limited time periods for certain types of existing business relationships, or when the recipient has provided the sender his or her email address without a restriction on its use for commercial emails and the message is relevant to the recipient’s business, role, functions or duties in a business or official capacity.

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 are subject to private lawsuits. Given the potential fines involved with violations, U.S. companies that are used to operating under the more permissive Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003 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 e-mail messages to their Canadian customers and will also require greater care with other electronic communications with Canadian residents.  If you need help ensuring that your company is prepared to comply with Canada’s new anti-spam law, please contact Ken Coleman (at kcoleman@wnj.com or 616.752.2708) or Norbert Kugele (at nkugele@wnj.com or 616.752.2186).

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