Entrepreneurship & Small Business

Canada's Anti-Spam Legislation (CASL) - July 2014

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  • Aug 17th, 2014 10:12 pm
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Canada's Anti-Spam Legislation (CASL) - July 2014

Canada's Anti-Spam Legislation (CASL), was recently passed and comes into force July 2014. It's similar to the Do Not Call legislation, in that it has far reaching implications for "cold emailing" (among other things). This will effect businesses even with respect to individuals currently on their email lists.

If you're a small business or entrepreneur that uses email, texts, or social media messaging to communicate with clients or prospects, I strongly recommend you take a quick look at the federal government website at:

http://fightspam.gc.ca/eic/site/030.nsf/eng/home
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I can see this has garnered a lot of interest ( :) ), but it's just around the corner and penalties for non-compliance can be quite costly...

If you're engaged in a commercial enterprise and you haven't already looked at this, now is the time...
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May 26, 2011
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This new legislation is, in my opinion, a farce.

- I'm actually receiving MORE email that I don't want now, asking me to opt-in to email lists from companies I haven't dealt with in years and have all but forgotten about.

- There are so many exceptions to the rule that most of the Canadian spam I was receiving before would be covered under at least one of them.

- The vast majority of spam I receive is not Canadian.

- The rules give no specific method on how to obtain express consent. We have no idea what the courts are going to accept (if any case makes it that far, which I doubt). I have server logs stating that someone clicked the "yes, I'm sure I want to subscribe to your email list" link in the confirmation email we send, but I could easily falsify that which makes me doubt it would stand up in court. I can't think of any low-cost method that's any better.
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PianoGuy wrote: This new legislation is, in my opinion, a farce.

- I'm actually receiving MORE email that I don't want now, asking me to opt-in to email lists from companies I haven't dealt with in years and have all but forgotten about.

- There are so many exceptions to the rule that most of the Canadian spam I was receiving before would be covered under at least one of them.

- The vast majority of spam I receive is not Canadian.

- The rules give no specific method on how to obtain express consent. We have no idea what the courts are going to accept (if any case makes it that far, which I doubt). I have server logs stating that someone clicked the "yes, I'm sure I want to subscribe to your email list" link in the confirmation email we send, but I could easily falsify that which makes me doubt it would stand up in court. I can't think of any low-cost method that's any better.
The big problem with the legislation (as well as regs) is that it's much too broad. It ends up capturing all sorts of legitimate electronic communication in its attempt to curtail spam.

The reason we're getting a flood of emails right now, is that the act comes into force July 1. As of the 1st an email requesting consent is in itself captured by the legislation. In other words, consent can be requested electronically now - and hence the flood of emails - but not as of the 1st.

I actually don't think there are that many exceptions to the requirements.

To your point about the spam that originates outside of Canada, the Act still applies to them if they're received on a computer in Canada. I doubt the CRTC will spend the resources to go after these, unless those organizations have a Canadian presence as well.

The regulations do prescribe requirements for obtaining express consent. The onus of proving consent however is on the sender of the message. I think your server logs would likely be sufficient, if the requests for consent were done in compliance with the law.

I do agree with you though that the legislation sucks!
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Here's my issue with this law... who really cares about electronic spam. Sure it's slightly annoying when it doesn't get filtered, but it's so easy to filter out and it's so easy to make go away when it doesn't. It doesn't (directly, for the sake of argument we'll just say it doesn't) cost us trees, fossil fuels etc. like physical spam mail in my mailbox does. However, where is the anti-spam law for the mailbox full of flyers and real estate agent postcards that are just dying to sell my house? That would be far more useful.

Okay I know the reason why, because without spam Canada Post would be completely in the dumpster... but it's so friggin' strange that we have a law for e-spam and not for the much more annoying, wasteful snail spam.
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random pattern wrote: The reason we're getting a flood of emails right now, is that the act comes into force July 1. As of the 1st an email requesting consent is in itself captured by the legislation. In other words, consent can be requested electronically now - and hence the flood of emails - but not as of the 1st.
Are you sure about that? I could be wrong but I thought there is still a further 2 year period where consent can be implied. While I still agree with you that competent organizations are getting in front of this before the first milestone, but I think that (technically) organizations hey can still contact people for 2 years to get them to upgrade from implied to expressd.
random pattern wrote: To your point about the spam that originates outside of Canada, the Act still applies to them if they're received on a computer in Canada. I doubt the CRTC will spend the resources to go after these, unless those organizations have a Canadian presence as well.
I wish the regulators would crack down on the whole industry. As it stands, Canadian ISP's and mail relayers will just say they couldn't block the foreign senders. Of course they can easily blacklist foreign offenders, but until they are actually forced to, the whole "it's impossible to stop" excuse will continue to be easier for them to hide behind, and since most people including many technical ones, think this is true, they won't have any pressure to fix it either.

The same goes for telephone spam. The constant excuse is the calls originate elsewhere. Sorry, but every call received on a Canadian cell phone or landline phone is connected through a large, rich, well organized corporation using digital technology that could instant detect and block such calls. They just haven't been forced to, and the myth that these calls can't be stopped has been a free and easy shield.
random pattern wrote:I do agree with you though that the legislation sucks!
Something I remain confused about is what communications need the consent. For example if I haven't given consent to RFD for newsletter spam, can they still send me an email if someone tries hacking my password? If I check off the box that says I will accept emails from RFD administration, does that include consent for the newsletter? Can organizations just take a shortcut and decide it's all or nothing? In other words: no newsletter, then no functional emails either?
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BinaryJay wrote: Okay I know the reason why, because without spam Canada Post would be completely in the dumpster... but it's so friggin' strange that we have a law for e-spam and not for the much more annoying, wasteful snail spam.
It may look strange. But when you learn the history of how physical junk mail and telephone junk mail legislation was being created, it turns out rich and powerful corporate forces flexed their muscles, tag teaming with self-serving politicians to lobby and craft the laws to give themselves back doors. That's why we have the messed up scenarios that we do.

It's why politicians can still robocall you, it's why newspapers can still phone you selling subscriptions, it's why direct (junk) mail companies are such generous political donors, and it's why corporations that want to telemarket to sell you something or sling mud about something only have to hire a "survey" company that will call up thousands of people and ask them fake survey questions about why something is so wonderful, or why something else is so terrible.
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BinaryJay wrote: However, where is the anti-spam law for the mailbox full of flyers and real estate agent postcards that are just dying to sell my house? That would be far more useful.
You can place a sign on your mailbox stating you don't want to receive bulk mail. As long as it's unaddressed, they won't deliver after that.
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Jun 13, 2014
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I don't care about spam, it taste good fried in a pan though.. oh wait..
Something with more than two legs, but less than three.
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PianoGuy wrote: You can place a sign on your mailbox stating you don't want to receive bulk mail. As long as it's unaddressed, they won't deliver after that.
Sure but that doesn't solve the real underlying issue of waste, it just prevents you from seeing it. It still all gets produced, transported and eventually chucked -either by you, or by the mail service (assuming the sign works). I don't think any information gets relayed back to the junk mailers about how much of their junk actually makes it into mailboxes so production doesn't get reduced as a result of your refusal at the box.

You can opt out of CMA junk, I have no idea how much junk is produced that falls under their umbrella but I'm guessing not much because I noticed zero difference after opting out:
http://www.the-cma.org/consumers/do-not-contact
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Email title I just got: " une action d'urgence est nécessaire pour continuer à recevoir des offres exclusives et des informatio​ns sur les produits de Chevrolet, Buick, GMC et Cadillac."

emergency !!! please accept to receive our junk !!!
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Recent article in the globe and mail: http://www.theglobeandmail.com/report-o ... e19326126/

So what does the new express consent requirement mean for small businesses who have cultivated e-mail marketing lists over the years and are now worried about losing those contacts? The good news is there’s a grace period for getting consent – as long as you’ve communicated with the customer prior to July 1st, 2014, you have three years to convert them to express consent. If you get implied consent after July 1, 2014, you have two years to convert to express consent, but that’s still a good chunk of time to get your lists on board.


So I guess we have 3 year so long as we send something out soon.

I am using a google doc found here: http://www.gpvsb.com/index.php/2-uncate ... directions
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BinaryJay wrote: Here's my issue with this law... who really cares about electronic spam. Sure it's slightly annoying when it doesn't get filtered, but it's so easy to filter out and it's so easy to make go away when it doesn't. It doesn't (directly, for the sake of argument we'll just say it doesn't) cost us trees, fossil fuels etc. like physical spam mail in my mailbox does. However, where is the anti-spam law for the mailbox full of flyers and real estate agent postcards that are just dying to sell my house? That would be far more useful.

Okay I know the reason why, because without spam Canada Post would be completely in the dumpster... but it's so friggin' strange that we have a law for e-spam and not for the much more annoying, wasteful snail spam.
+1
SurplusPlus wrote: Are you sure about that? I could be wrong but I thought there is still a further 2 year period where consent can be implied. While I still agree with you that competent organizations are getting in front of this before the first milestone, but I think that (technically) organizations hey can still contact people for 2 years to get them to upgrade from implied to expressd.
The CASL provisions definitely come into force July 1, 2014. You may be thinking of either the private right of action which comes into force July 1 2017, or the sections that provide that certain implied consents are time limited. That is, first of all, implied consent only exists in certain prescribed circumstances, and in some of those circumstances may only be relied on for 2 years - e.g. after a purchase or the expiration of the contract. The organizations most of us are receiving emails from right now can't rely on the existing business provisions and so don't have implied consent with us.
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CowDoc wrote: Recent article in the globe and mail: http://www.theglobeandmail.com/report-o ... e19326126/

So what does the new express consent requirement mean for small businesses who have cultivated e-mail marketing lists over the years and are now worried about losing those contacts? The good news is there’s a grace period for getting consent – as long as you’ve communicated with the customer prior to July 1st, 2014, you have three years to convert them to express consent. If you get implied consent after July 1, 2014, you have two years to convert to express consent, but that’s still a good chunk of time to get your lists on board.


So I guess we have 3 year so long as we send something out soon.

I am using a google doc found here: http://www.gpvsb.com/index.php/2-uncate ... directions
Not your fault, but that article is very, very misleading.

1. The new requirement is for consent. It doesn't matter if it's express or implied, but implied is prescribed and limited.

2. Just because you've communicated with someone before July 1, doesn't mean you can email them afterwards. You'll still need consent - either implied (for example, based on an existing business relationship), or express if you don't fall into the limited implied consent definitions.

3. You can't get implied consent. You either fall into the definition or you don't, but you can get express consent and that's what most organizations are doing right now. For example,
a) my bank has an existing business relationship with me and can rely on implied consent to communicate electronically with me.
b) I used Selloffvacations.com last year - they only have implied consent until 2 years after my last purchase. If they want to continue to send me emails after the expiration of that 2-year period, they need to get my express consent and if they want to ask for that consent by email they can only do so before that 2 year period runs out.
c) I have never used XYZ's services, yet I'm on their email list. They don't have implied consent. If they want to continue to send me emails, they need to get my express consent and if they want to ask for that consent by email they can only do so before July 1.

Hope this makes things clearer.
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1/3 of my spam I receive is of Canadian origin which I never subscribed in the first place. So they are spammers by nature and I can't wait to see them punished!!!!
I am glad there's change. In the past sometimes a question to a company would results in a ton of spam as they'd "assume" you would be ok with receiving their stupid updates.

I also hope Canada will implement a similar law for junk mail. So many idiots come in to my home, disregrard the "no junk mail" sign and throw a bunch of their stupid flyers. A few times I'd get back home after a rain to find a whole lot of mess on the ground with all that paper in 1000s of pieces
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July 1st! The CASL provisions are now in force.

As of today, generally your commercial electronic messages must comply with the consent and form requirements of CASL. One big difference from yesterday - assuming you can't rely on an exception to the consent requirement and that you can't rely on implied consent, you're going to need express consent before you can send out a commercial electronic message. Yesterday you were allowed to send out an email asking for that consent. Today, you're not.

Also, there's been a lot of discussion about consent, but don't forget there are the form requirements as well: Clearly identifying the sender, providing certain prescribed contact information, as well as providing a clear unsubscribe mechanism.
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dazz wrote: 1/3 of my spam I receive is of Canadian origin which I never subscribed in the first place. So they are spammers by nature and I can't wait to see them punished!!!!
I am glad there's change. In the past sometimes a question to a company would results in a ton of spam as they'd "assume" you would be ok with receiving their stupid updates.

I also hope Canada will implement a similar law for junk mail. So many idiots come in to my home, disregrard the "no junk mail" sign and throw a bunch of their stupid flyers. A few times I'd get back home after a rain to find a whole lot of mess on the ground with all that paper in 1000s of pieces
Well sounds like you need a better mailbox... lol. The only thing about junk mail that I don't like is the fact that it is a waste of energy and resources, the actual presence of it in my mailbox is no big deal to me. The sheer number of constant mailings from real estate agents who are foaming at the mouth to sell my house is somewhat of a source of entertainment too.
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I will give my input from a business perspective.

The new CASL act will do nothing to stop spam, as most spammers are out of reach of the short hand of the Canadian law (i.e Russia, Nigeria). They often forge email headers, so the spam looks like they came from legitimate companies.

This has been a cash cow for lawyers, striking fear in the Canadian Business Community, that by sending one unsolicited email, your business is going to be wiped out by a million dollar fine.

We do not send spam, however we send two emails to existing customers. The first is the followup to the order being delivered, that gives return instructions, warranty, and a small promotional message for our other websites). The second letter is to seek permission to send a once every six months promotional email (explicit consent), with links to other websites we own (cross-selling). Technically, this second email is in violation of the CASL, as you cant promote your products in a explicit consent letter. Am i worried, No.

First of all, the CASL is feel good legislation that does nothing to stop spam, as described earlier. It restricts Canadian Businesses from conducting business with existing customers. It's expensive to obtain a customer, and with the CASL, if the customer does not open your email, gets caught in a junk mail folder, or is deleted without action in error; during the daily spam deletion ritual, you are not allowed to contact that customer again.

Eventually the CASL will be ruled unconstitutional by the Supreme Court of Canada, but this will take 5-10 years to work it way through the legal system. All this can be avoided by modifying the legislation, to change the opt-in to opt-out policy,, like all the other countries with anti-spam legislation. Until then we will be following the US CAN-SPAM act.

Am I worried about a million dollar fine; No. The departments that run the CASL are underfunded with existing programs, and are probably responsible for running this program with no or little additional resources. They have a website to report spam, and this website will have a long tail of 1 or 2 spam reports due to false positives, and a sharp peak of real spammers. Most will be out of reach of Canadian law, but like in the USA, they will have a few successes, that when start the process towards the constitutional challenge, and the eventual change of the CASL to a opt out system.

I'm in full support of anti-spam legislation, but the legislation must be in balance, to protect consumers, and legitimate business communication at the same time.
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lordsoth wrote: We do not send spam, however we send two emails to existing customers. The first is the followup to the order being delivered, that gives return instructions, warranty, and a small promotional message for our other websites). The second letter is to seek permission to send a once every six months promotional email (explicit consent), with links to other websites we own (cross-selling). Technically, this second email is in violation of the CASL, as you cant promote your products in a explicit consent letter. Am i worried, No.
So, from a business perspective you feel it is OK to spam your former customers. This is what CASL is designed to stop. This is spam and you are a spammer. Just because you are not a long-lost Nigerian prince does not make your spam any less of what it is, spam.

I am curious, you keep saying you are not worried about anything, which is fine. But have you looked into the private right of action (when it comes into force)? It seems you have not, and you should. Even if you are not worried about organizations, you should be worried about your disgruntled customers (which every business has).

Further, before you dismiss the fines you should investigate the organizations that will be issuing the fines. The CRTC is quite capable of enforcing these fines and does so all the time.

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