CASL Part II: B2B Messages and the Concept of Consent

December 11, 2015

Is my message spam?

Are you trying to use the web to reach out to as many people as you can to build your business? - Not so fast! Canada’s new anti-spam legislation (“CASL”), which came into force July 1, 2014, creates restraints on your ability to do this if you are sending commercial electronic messages (“CEM”). To qualify as a CEM, the message’s purpose must be to encourage participation in commercial activity. CEM’s cover a wide range of messages including messages that are sent to emails, instant messaging accounts, telephone accounts, and social media accounts such as Facebook and Twitter, as well as the broadly defined “any similar account”.

This means that if your business wants to send a CEM you must have either express or implied consent from the recipient. Without consent you risk heavy fines under the legislation.

**Express Consent **

Express consent consists of a clear unequivocal “yes” to receiving a CEM. This does not include pre-checked boxes that the potential recipient accepts. It has to include a positive action whereby the potential recipient opts into receiving a CEM. This can include clicking the “yes” button themselves, or toggling acceptance, or entering their email address.

**Implied Consent **

There are two main categories of implied consent. These include an existing business relationship, and email addresses that are made public without a ‘do not contact’ statement. Each will be addressed in turn.

**Existing Business Relationship **

Consent is implied if the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship with the person to whom it is sent. Examples of *existing business relationships *that allow a business to send a CEM include:

  • the purchase or lease of a product, goods, a service, land or an interest or right in land, within a two-year period immediately before the day on which the message was sent or the bartering of any activity mentioned in this paragraph;
  • the acceptance by the receiver of the CEM, within a two year period before the day on which the message is sent, of a business, investment or gaming opportunity;
  • written contract entered into between the sender and receiver of the CEM; and
  • an inquiry or application, within the six month period immediately before the day on which the message was sent, made by the person to whom the message was sent to.

The above scenarios allow a company to send a CEM to another business if they have interacted before or done business with each other within the defined time periods. This makes it essential for businesses to keep records of the last interaction with each customer, as the time period will be extended by each interaction.

** Conspicuously Published Email Address**

Businesses seeking to make ‘cold calls’ will more likely rely on the ‘conspicuously published email address’ category of implied consent. CASL assumes implied consent if the business contacted has conspicuously published (meaning published in plain sight, for example, on a website or in a trade magazine) or disclosed an email address (information is given to you, for example, people giving you their business card or address), and has not accompanied that email address with a statement that they do not wish to receive unsolicited messages. In addition, the CEM must be relevant to person’s business, role, functions or duties in a business or official capacity.

These requirements have several implications. First, *you cannot simply find email addresses electronically and send them all CEM’s. *Second, it would be prudent to record how you obtained the business’s email, and to verify that a ‘no unsolicited messages’ statement does not **appear on the source where the email address was found. Third, because the CEM has to be relevant to the recipient’s business, you must know something about the recipient’s business, and be able to determine that your CEM is **actually relevant to their business. The measure of relevance has to be has yet to be decided, but given that maximum fines range from $10 million for corporations, and $1 million for individuals, you do not want your business to become a test case!

**Takeaways **

  • Keep records of how you obtained implied or express consent, **since in both cases you have the onus to prove consent. **
  • When finding contact emails on business’s websites be sure to look for any language that states the address cannot be contacted for unsolicited messages
  • Be aware that even if you have an existing business relationship, CASL imposes time limits.
Long Form
Commercial Activities