Do you ever get annoying emails from companies you’ve never heard of? Or continuous emails from a company you once agreed to receive an email from years ago? Be aware that you have a right to have these messages stopped.

Under Canada’s Anti-Spam Legislation (“CASL”) which came into force July 1, 2014, companies are allowed to send you commercial electronic messages (CEM). CEM’s cover a wide range of messages including messages that are sent to emails, instant messaging accounts, and social media accounts such as Facebook and Twitter. However, these messages are only permitted under certain circumstances, and the sender must provide an easy to use unsubscribe mechanism. An unacceptable unsubscribe mechanism would be a complex multi-step mechanism, such as being re-directed to a new page and then having to login with a username and password and then having to select an unsubscribe button. If you ‘unsubscribe’, they must stop sending you messages.

 

Consent

In order for a company to legally send you a CEM they must have either express or implied consent from you. Express consent consists of a clear unequivocal “yes” to receiving a CEM. If a box is pre-checked with “yes, I wish to receive messages…”, it does not count as consent. It has to include a positive action whereby you opt into receiving a CEM. This can include clicking the “yes” button yourself, or toggling acceptance, or entering your email address.

 

Companies can send you CEMs if they have implied consent from you. 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 you.[1] Examples of existing business relationships that allow a business to send a CEM include:[2]

  • 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;
  • your acceptance, within a two year period before the day on which the message is sent, of a business, investment or gaming opportunity;
  • you have entered into a written contract with the sender of the CEM;
  • you made an inquiry or application, within the six month period immediately before the day on which the message was sent.

The above scenarios allow a company to send a CEM to you if you have interacted before or have done business with them 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

The easiest way for companies to legally send you CEM’s is if you have your email address conspicuously published. CASL assumes implied consent if the recipient 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[3].

 

If you are receiving emails from companies you have never heard of, this is likely what they are relying on. If you wish to avoid these messages, you can place an explicit statement underneath your email stating that you do not want to receive any unsolicited messages to the email address above. If you do not have this message people can send you CEMs, but only if they are relevant to your business.

 

You can report CEM’s that break these rules. Simply forward the CEM’s to spam@fightspam.gc.ca, where they will be reviewed by the Spam Reporting Centre (SRC). The laws provide for maximum fines of $1million for individuals and $10 million for companies who break the CASL rules. As of July 1, 2017, there will also be a private right of action, which will allow individuals to take legal action against anyone not following the rules.

 

Takeaways

  • If you do not want to receive CEM’s and you have your contact information conspicuously published online, ensure you have a statement next to the email that states you do not want to receive unsolicited messages
  • Know that every CEM sent to you should have an easy to use unsubscribe mechanism. If the message does not then the sender can be reported and susceptible to punishment by the CRTC.
  • Beginning on July 1 2017 individuals will be able to take legal action on their own against those who contravene CASL.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

 

[1] CASL, s. 10(9)(a).

[2] CASL, s 10

[3] CASL, s. 10(9)(b).