Now more than ever, digital marketing has become a very important tool for any business. A strong online presence can help your business generate a lot of revenue while strengthening your brand. Digital marketing usually involves constant interaction with actual or prospective clients, whether through content posting or other relevant means. Many businesses send automatic promotional e-mails to their clients with news and updates regarding their products and services. This strategy can be very effective, depending on the quality of the content. However, such marketing activities are subject to Canada’s Anti-Spam Legislation (“CASL”), which provides the rules under which you can send commercial e-mails to third parties.
In this article, we summarize the rules applicable to commercial e-mails and your obligations under the CASL.
COMMERCIAL ELECTRONIC MESSAGE
A commercial electronic message (“CEM”) is defined under the CASL as a message that, having regard to its content, is sent for the purpose of encouraging participation in a commercial activity. This includes any message that offers to purchase or sell products and services, or that promotes a business in connection with its products and services.
There are 3 main obligations under the CASL with respect to the sending of CEMs to third parties:
You need to obtain the recipient’s consent before sending a CEM;
There is mandatory information that must be included in every CEM; and
You need to provide a proper mechanism for the recipient to withdraw his or her consent to receive future CEMs.
Let us take a close look at each of those obligations.
1. CONSENT
Generally, every business must obtain consent (express or implied) from the recipient before sending a CEM. To obtain express consent, you must indicate in your request for consent :
The purpose for which you are seeking consent;
Your business name and contact information; and
A statement indicating that the recipient can withdraw his or her consent.
There are certain circumstances when consent is implied, such as when there is an existing relationship (business or non-business) between you and the recipient or when the recipient has disclosed his electronic address without indicating that he or she does not wish to receive unsolicited CEMs and the message is relevant to the recipient’s activities.
Keep in mind that you have the burden to prove that you obtained consent for CEMs, so it is important to make sure that your marketing strategy includes include proper mechanisms for consent.
There are certain situations where you may not obtain consent prior to sending a CEM. This is the case when, for example, you are sending previously requested information regarding your products and services, you are sending information to complete or confirm a commercial transaction between you and the recipient, or when you are responding to a request, inquiry or complaint sent by the recipient. You will notice that the exceptions provided under the CASL usually involve prior solicitation from the recipient, or a prior business relationship between the parties which requires an update. Except for these circumstances (and other specific exceptions set forth in the CASL), you must obtain consent prior to sending a CEM.
2. CONTACT INFORMATION
Every CEM you send must contain sufficient information to identify and contact you, such as your business name, mailing and email address, phone number and any other information which would enable the recipient to contact you. Such information must be set out clearly in the CEM.
3. UNSUBSCRIBE MECHANISM
Your CEMs must provide an unsubscribe mechanism which enables the recipient to indicate, at no cost, that he or she no longer wishes to receive CEMs. Such mechanism can be provided in the CEM itself or through a link in the CEM to a web page where the recipient can withdraw his consent. The unsubscribe mechanism must be easy to perform, so you must make sure the process is as simple as possible.
CONCLUSION
CASL compliance is very important for your business activities. If you have a business and you are reading this article, you are probably sending CEMs in one way or the other. Failure to comply with the CASL can lead to hefty penalties, with a maximum penalty of $1,000,000 for individuals and $10,000,000 for entities. Endlex Legal can help you comply with the CASL.
Information provided in this article is intended as general introductory information only. The information provided in this article is not legal advice. It should not be construed as legal advice and should not be relied upon as such. Should you want legal advice regarding the information provided in this article, please contact one of our lawyers.
