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The Law around Commercial Electronic Messages:

Are you serving your clients spam and cookies or prime rib and crème brûlée?

By Anna Cook, Cox & Palmer

According to the federal government, Canada’s anti-spam legislation (CASL) has been an effective tool in managing unwelcome and sometimes dangerous electronic communication. They report strong statistics which support two conclusions: Canadian inboxes now receive much less spam (disappointing to those looking for great discounts on their online printer-cartridge purchases), and Canadian businesses that use electronic communication as part of their overall marketing strategy are having more success connecting with their target market: their messages reach more people who actually want to receive them and have an interest in what they have to say, with those messages being more likely to be opened, read, and scrolled through by the recipient. They also report on the strong reputation that Canadian businesses enjoy worldwide as a result: CASL-compliant companies serve up safe, good-quality, expected electronic messages to their customers, giving them a competitive advantage. Sounds like a win-win to me.

But this success hasn’t been easy for business owners. When it comes to getting compliant and staying compliant, CASL is demanding. And your attention is not optional: CASL applies to all businesses and not-for-profit organizations that send electronic communications in connection with their commercial activity.

In the simplest of terms, CASL is federal legislation that, amongst other things, regulates the ways in which businesses interact with their customers and potential customers electronically. It covers a broad range of electronic communications, but of primary interest to entrepreneurs will be mass emails, texts, and social media direct messages. CASL prohibits the distribution of commercial electronic messages (“CEMs”) without the consent of your recipient. It also requires that businesses provide recipients a means of unsubscribing from their CEMs. The monetary penalties for non-compliance can be in the millions and can attract personal liability for directors and officers. This means you!

If you have a dedicated marketing department or have engaged a marketing agency, chances are that those professionals are already ensuring compliance for you (though you are still ultimately liable if something goes wrong). If you don’t, then this responsibility ultimately falls squarely on the CEO and other executives.

What’s the next step? You must evaluate your electronic marketing practices to determine if you are compliant with CASL. If you are not, then you need to develop a plan to get and stay compliant. Take a hard look at your contact list and ask yourself some tough questions:

What does my online marketing strategy entail?

Do I have the necessary consents on file (express or implied) to send CEMs to my contact list?

If yes: does it need to be refreshed?

If no: how am I going to get it?

Do my messages have all of the elements required by the Act (e.g., sender’s contact information, mechanism to unsubscribe, etc.)?

Do my recipients have a means of unsubscribing?

Do I have policies in place to ensure that, as my contact list matures, CASL compliance is preserved?

If my online marketing is done by a third party, am I satisfied that they are CASL-compliant?

Do I have good CASL record-keeping so I can defend myself in the event of a complaint?

This CASL audit of your distribution list will most likely result in a shorter list: there will be names that have to be removed. But think about this: the resulting list will be one that is better targeted, which will likely lead to better results and keep you out of legal trouble. The names you lose are people who probably didn’t want to hear from you anyhow—they’re just not that into you. Focus instead on those who are, and you’ll be serving up high quality—and legal—marketing in no time.


By Anna Cook, Cox & Palmer

Anna Cook is a partner at Cox & Palmer, St. John’s, where her practice focuses primarily on corporate and commercial, employment and labour, and privacy law. She handles matters including commercial financings, commercial real estate purchases, financing and leasing, share sales, asset sales, mergers and acquisitions, and joint ventures. She has extensive experience acting for clients ranging from small-business start-ups to large multinational and international corporations and has advised businesses at every stage of the business cycle. A strong supporter of women in business, Anna is an active NLOWE member and a presenter for the NLOWE Entrepreneur of the Year Awards.

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