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Background

In its current version, Canada’s Anti-Spam Legislation (CASL) is economically detrimental to the Canadian economy and it limits our government’s vision of keeping “Canada at the leading edge of the digital economy.”

In relation to electronic messages, CASL’s provisions are not only anti-competitive to our Canadian businesses but excessively expensive to comply with.

Stated Goal

Lighten Canada’s Anti-Spam Legislation (CASL) so businesses can easily comply with it while still protecting consumers.

Recommended Reform

#LightenCASL urges our federal government to implement the following revisions to Canada’s Anti-Spam Legislation (CASL):

Problem #1 – The Narrowness of Implied Consent

The current provisions of consent under CASL are too narrowly prescriptive, putting our Canadian businesses at a competitive disadvantage against foreign counterparts who fall under less prescriptive rules. According to CASL, the legislation applies to all businesses (both inside and outside of Canada), however, it’s our Canadian companies who are most prone to private right of action lawsuits (if the provisions are ever enacted) and regulatory administrative monetary penalties (AMP)—as of October 2017, 100% of all published AMPs have been against Canadian entities.

Solution #1

Revise the definitions of implied consent to apply to more situations where a recipient would reasonably expect a CEM from the sender.

Problem #2 – The Arbitrary 2 Year and 6 Month EBR Purge Dates

In many industries and sectors, consumers often take longer than 6 months to make a buying decision (e.g., vehicles, large electronics, home appliances, etc.) and take over 2 years to repurchase products (e.g., re-buying a home from a realtor, home renovations purchases, etc.). Because 2 years may have lapsed from the date of last purchase doesn’t mean a consumer has lost affinity with a particular sender. You may have purchased a home from a realtor in the past, not providing express consent (its usually unnatural to provide express consent in these settings), and occasionally receive an email campaign from this realtor. A past customer may still have a good relationship with this sender and doesn’t mind receiving an occasional email campaign after two years from the date of their last purchase , but they are just not ready to buy another home yet due to the buying cycle of consumers in this situation; under the current version of CASL, the realtor would be forced to not send this customer any CEMs after 2 years from their last purchase.

Solution #2

Eliminate the 2-year and 6-month rules around Existing Business Relationships (EBR).

Problem #3 – Innocent Intermediaries Caught Under the Act

Throughout the legislation (and as an example in section 6(1)), language is used to the effect that the person responsible for violations is the person that “send[s] or cause[s] or permit[s] to be sent to an electronic address a commercial electronic message”. This language is erroneously broad, and therefore, could unreasonably catch parties (e.g., internet service providers, email service providers and marketing vendors) that are required for sending a CEM, but are contractually, legally or commercially limited in their ability to ensure all CEMs being sent by the interested party is compliant with the legislation.

Solution #3

Narrow the responsibility of the Act to the party that is ultimately responsible for the inception of a CEM.

Problem #4 – The Impracticality With How the Transactional Messages Provisions Exist in the Act

In CASL’s current version, there’s a technical glitch that’s affecting certain messages and all parties (both recipients and senders involved). Under section 6(6) of the Act, a transactional message doesn’t require consent (its exempt from 6(1)(a), but counter-intuitively still requires an unsubscribe mechanism. This creates confusion for businesses and potential frustration for consumers which can hurt the relationship between the business and their customers. Here’s why – a business may be required to send the transactional message to a customer pursuant to law or a service agreement between the parties, and it’s permissible to send the message pursuant to 6(6), but then if the recipient unsubscribes, the recipient may not expect to get any further transactional messages from the business. However, pursuant to 6(6), the business can still send this recipient transactional messages. It’s safe to exempt messages that are created to confirm or facilitate a transaction entirely from the Act as there is already a commercial relationship present between the sender and recipient. In theory, if the sender abuses this, the recipient would no longer do business with the sender, hence, there would be no need for transactional. Therefore, by this nature, transactional messages have a self-policing effect.

Solution #4

Exempt transactional messages entirely from the Act.

Summary

If our federal government implements the above four recommendations, Canadian businesses will be able to more easily comply with CASL, Canada’s global economic competitiveness will improve, and consumers will remain protected.