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By: Hugh Webster

Partner, Webster, Chamberlain & Bean, LLP

A key deadline in the Canadian Anti-Spam Legislation (CASL) is approaching. Effective July 1, 2017, commercial emails (as well as text messages of a commercial nature) may be sent to a person in Canada only if that person:

  1. is a current association member;
  2. holds a current certification from the association;
  3. has given express consent;
  4. has been a member, has been certified, made a purchase, attended an event, or contributed a donation within the 24 month period prior to receiving the commercial email; or
  5. has made an inquiry within the 6 month period prior to receiving the commercial email.

For corporate members, commercial emails can be sent to any employee or official of that company (unless the corporate member directs otherwise).

Express consent means that a person has clearly agreed to receive a commercial email. This could be, for example, by checking a box on the association website or on a conference registration. The request for express consent should include a statement that the recipient will still be able to choose to opt-out in the future. Express consent is not time-limited; it remains in effect until revoked, e.g., through an opt-out.

It is important to keep records of members, purchases, attendees, inquiries, etc. in case the association ever has to prove that there was consent – implied or express.

As in the US, commercial emails must have an opt-out mechanism. Here is an example of the kind of statement that could be included on all commercial emails:

“This email has been sent to you as a result of your implied or express consent to receive promotional emails from the XYZ Association. If you no longer wish to receive these promotional emails from the XYZ Association, please click here.”

The good news is that presently only the Canadian government can sue to enforce this law. The recipient of a commercial email has no standing to file a lawsuit against the sender. The law originally gave recipients the ability to sue, with a potential penalty of $200 per email, and this is what made the law so worrisome, but the Canadian government later suspended that provision. It could be reinstated at any point, but for the time being AMCs do not need to worry about being sued for an occasional commercial email mistakenly sent without express or implied consent.

AMCI Partners

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