Canada is on the verge of implementing sweeping new regulations on email marketing. Canada's Anti-Spam Law ("CASL") was passed in December 2010, but most of its operative provisions are expected to take effect sometime in 2013. Businesses are recommended to begin preparing now, because compliance may be onerous and penalties for violations will be exorbitant.
Unlike the CAN-SPAM Act in the United States, CASL regulates more than just email communications - text messages, instant messages, and certain forms of social media communications also fall under its purview. Furthermore, CASL requires companies to obtain consent before sending commercial emails to new recipients. The opt-out provisions that many companies have adopted pursuant to CAN-SPAM will be insufficient.
The biggest challenge for most companies will be the need to ensure that existing email lists comply with the opt-in requirement. CASL attempts to ease this burden by creating a three year phase-in period. During that time, a person's consent to receive commercial emails is implied, provided that (1) the sender and recipient have an existing business or non-business relationship, as strictly defined in the legislation, and (2) their relationship includes the sending between them of commercial emails. However, this implied consent will expire at the end of the phase-in period, so businesses must be proactive in obtaining express consent before time runs out.
While the opt-in requirement may be the most difficult compliance requirement for most companies, businesses should also be aware that CASL imposes additional requirements on commercial email communication. All such emails must clearly state the identity of the person sending the email (and, if applicable, the identity of the person on whose behalf the email is being sent), the name under which that person carries on business, and that person's contact information. They must also clearly and prominently set out a means for recipients to unsubscribe from receiving future emails. The unsubscribe mechanism must be accessible without difficulty or delay, and should be quick, simple, and easy for the recipient to use.
While CASL itself has been passed, its related regulations are still partially unpublished. The Governor in Council's draft regulations were released last year and are currently being reevaluated based upon public comments. Commentators expect that its final regulations will be released shortly. The Canadian Radio-television and Telecommunications Commission (the "CRTC"), which is the primary agency responsible for enforcing the law, released its own final regulations in March, and has begun issuing compliance and enforcement information bulletins which provide advice to companies on how best to implement them.
TAKE AWAY: Companies should be cognizant of the changing legal landscape in the field of email marketing. While its regulatory structure is not yet fully formed, it is clear that the CASL is far more onerous than existing regulation in the United States. Given the difficulties that companies may face when conforming to its requirements, businesses would be wise to start preparing now.
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