Legal Alert: Feds Finally Opt-In To Anti-Spam Regulations

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Legal Alert: Feds Finally Opt-In To Anti-Spam Regulations

December 5, 2013

By David Fraser, at McInnes Cooper

On December 4, 2013 the Federal Government announced it has finalized the long-awaited and much revised Regulations to Canada’s Anti-Spam Legislation (aka “CASL”) – officially moving Canada from an “opt-out” to an “opt-in” framework for “commercial electronic messages”:

The Laws. CASL was proclaimed in 2010, but has been effectively on hold until the necessary Regulations were finalized. CASL sets out the broad strokes of the new “anti-spam” and unsolicited software regime. The Regulations set out the rules for “commercial electronic messages” (or “CEM’s”) in detail. The definition of a CEM is in CASL: there are a number of inclusions and exclusions, but essentially it is any electronic message that encourages participation in a commercial activity, whether or not for profit.

From Opt-Out to Opt-In. In a nutshell, CASL (and the Regulations) move Canada from an “opt-out” to an “opt-in” framework for all electronic-based marketing. Basically, if you want to send a “CEM” within or into Canada, you will need the recipient’s prior consent to do so or you’ll have to fit within one of the complicated exceptions; the “ask forgiveness not permission” approach where recipients have to tell you to stop sending CEM’s will cease to be the case in Canada.

The Reach. The reach of CASL and the Regulations is broad: it will apply to every business – from sole proprietors and independent contractors to multinational corporations – sending a CEM to, from or within Canada. And CASL doesn’t just apply to CEM’s sent by the business itself; it also applies to CEM’s sent by individuals and charities.

Key Dates. CASL and the Regulations will be phased into effect:

December 18, 2013. The Federal Government will publish the Regulations in the Royal Gazette – a normal part of the process to make them effective and in this case, practically a formality on which nothing hinges.
July 1, 2014. Most of CASL – including the “anti-spam” sections and the Regulations – will become effective.
January 15, 2015. The CASL sections dealing with the unsolicited installation of computer programs or software will take effect.

Opt-In To Compliance – Now. Most businesses (and some non-profits) will have to make significant changes to comply with CASL and the Regulations – and it won’t happen overnight. Some organizations started to act based on the drafts regulations during the consultation stage. Now that the Federal Government has finalized the Regulations and announced the effective dates, it’s time to act – organizations need to determine whether CASL and the Regulations cover their electronic communications (and which ones), whether their current processes comply, and if they don’t, what changes they must make – and get them made. There is no grandfathering – so every CEM sent after July 1, 2014 must comply.

Click here to read CASL.

Click here to read the Regulations.

Click here to read more about CASL in our Privacy publications.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper CASL Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2013. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Click here to request our consent.

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