Canada Is Not Kidding When It Comes to Spam

Once the law comes into force, how does it affect consent?

Knowing that people and businesses may need to change their practices when it comes to sending commercial electronic messages (CEMs), the legislation includes a transitional provision that relates to the consent requirement. There are two types of consent – express and implied. The transitional provision set out in section 66 of CASL applies to implied consent.

Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs.

In contrast, express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent.

Source: CRTC

This will also include texting, instant messaging and some social media.

An electronic address is defined in CASL as being: an email account, a telephone account, an instant messaging account, and any other similar account.

Some social media accounts may constitute a ‘similar account’. Whether a “similar account” is an electronic address depends on the specific circumstances of the account in question. For example, a typical advertisement placed on a website or blog post would not be captured. In addition, whether communication using social media fits the definition of “electronic address,” must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. For example, a Facebook wall post would not be captured. However, messages sent to other users using a social media messaging system (e.g., Facebook messaging and LinkedIn messaging), would qualify as sending messages to “electronic addresses.”

Websites, blogs and micro-blogging would typically not be considered to be electronic addresses.