Can’t I have the spam without the spam?

July 16, 2014

Can’t I have the spam without the spam?

July 16, 2014

Senior Associate Zigis Switzer blogs about the implications of recent legislation in Canada which may have far-reaching consequences for North American businesses. 7.16.2014


“I don’t like spam!” — Monty Python

On July 1, 2014, CASL (Canada’s Anti-Spam Legislation) went into effect, strictly forbidding the transmission of commercial electronic messages to persons without their express consent. Because of Canada’s broad definition of a commercial electronic message, the American Bar Association has called the move, “the toughest anti-spam law in the world.” The implications for public relations professionals are real.

But before we dig further, let’s look back at the United States for some context. In 2003, President George W. Bush signed the CAN-SPAM Act (Controlling Assault of Non-Solicited Pornography and Marketing), ostensibly to establish measures and standards to put an end to commercial email inundation and protect consumers from overzealous businesses. While the effectiveness of the act has been called into question, it has given consumers some agency: recipients must be able to unsubscribe from an email list, and companies that do not comply with requests to stop their solicitations face fines and possible legal action. Until just last week, our neighbors to the north were not afforded this right.

Yet, unlike CAN-SPAM, CASL puts the burden on the sender, not the recipient, to end further communication. While the “unsubscribe” button passes United States muster, in Canada, unless you have express permission to solicit an email – or a number of other electronic communications (see below) – you are in violation of the law and will face very strict penalties.

So what exactly is a commercial electronic message? Good question.

The definition of spam under CASL is broad in scope, and likely includes the type of information, requests, and offerings a public relations professional will want to transmit. Specifically, CASL defines commercial electronic messages as any message sent electronically that encourages the recipient to participate in a commercial activity, including offers, advertisements or the promotion of a product, service, or person. Profit does not have to be a motivating factor. Mediums include e-mails, text messages, AIM, Gchat, Skype, and other instant messaging services, and, with limited exception, social media platforms. Basically every pitch you have ever sent falls under the scope of CASL.

Follow the jump here to read the law verbatim.

The social media exception is particularly interesting and will likely face many challenges and pitfalls. Last December, the Canadian government issued a clarification that social media platforms are generally categorized as electronic messaging services, which are viewed slightly differently under CASL. However, that doesn’t mean that tweet you sent to a reporter won’t land you in the same hot water as an e-mail. Exceptions to the content and consent requirements under CASL for social media are applicable, if:

  • The sender’s identification information and an unsubscribe option are easily visible and accessible to the recipient; and
  • The recipient consents to receive the message expressly or by implication.

There is speculation that some of the standard user functions – “follow,” “block,” “report,” etc – of social media platforms will satisfy CASL’s strict provisions.

Like all Canadian laws, they only apply in Canada and to Canadian companies. That means that your American email to a Canadian reporter, vendor, or business, is well outside their jurisdiction. But your business can still be impacted. All electronic messages that are sent from, or accessed by, a computer server housed in Canada are subject to CASL. Similarly, if a client of your company has an office in Canada and you manage their communications or use their servers when communicating with a pitch to reporters, you could be putting your client at risk of violating CASL.

For more information and to get your business in compliance with CASL, check out the Canadian government’s resource website for businesses and organizations, and consult an attorney.

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