Canada: Complying With Canada's Anti-Spam Legislation

However, CASL also has a significant extraterritorial effect. If a Lloyd’s managing agent or broker sends email, text messages, or direct messages over social media to electronic addresses in Canada or from Canada to anywhere in the world, CASL applies to that firm.

CASL’s key feature is that it regulates Commercial Electronic Messages (CEMs) which are defined as electronic messages that encourage participation in a commercial activity such as an email that contains a coupon or tells customers1  about a promotion or sale, regardless of whether there is an expectation of profit.

The act requires Canadian and global organisations that send CEMs within, from or to Canada to receive prior opt-in consent – from both new prospects and existing contacts – before sending messages. Consent can either be express or implied. Express consent can either be written or oral. While implied consent means the consent that may be implied by virtue of any number of different scenarios2  stated in the CASL, including the sender and recipient having an “existing business relationship” or an “existing non business relationship”. CASL also mandates that any CEM meet certain requirements as to the form of the message, the information required about the sender (identification and contact details), and appropriate unsubscribe mechanisms.

The penalties for not complying with the new anti-spam act are severe – CASL provides for penalties of up to $1m for individuals and up to $10m for corporations and other business entities.

Additionally, corporate personnel and directors can be held personally liable for the violations of their firms and CASL will furthermore introduce a private right of action from 1 July 2017. This will allow individuals to bring an action for contravention of the legislation.

¹The scope of recipients is defined broadly as “person to whom a message is sent: For the purposes of the Act, a reference to the person to whom an electronic message is sent means the holder of the account associated with the electronic address to which the message is sent, as well as any person who it is reasonable to believe is or might be authorized by the account holder to use the electronic address.”

²Consent 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 or an existing non-business relationship with the person to whom it is sent;
• the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;
• the person to whom the message is sent has disclosed, to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent, the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address, and the message is relevant to the person’s business, role, functions or duties in a business or official capacity.

For more details about CASL and its requirements, please visit www.fightspam.gc.ca.

Lloyd’s will issue further information via Crystal shortly. Lloyd’s published an article on the federal government’s intentions in May 2014.