Canada’s Anti-Spam Legislation: Commercial Electronic Messages

In our previous post about Canada’s Anti-Spam Legislation we briefly covered the law and provided some recommendations and considerations. In this post we will cover Commercial Electronic Messages. As defined by the law a Commercial Electronic Message (CEM) is any electronic message that “encourages participation in a commercial activity” regardless of whether there in an expectation to profit. CEMs include:

  • Emails
  • Instant messages
  • Text messages
  • Any other electronic correspondence

Examples of CEMs:

  • Offers to purchase, sell, barter or lease a product, goods, a service
  • Offers to provide a business, investment or gaming opportunity
  • Promoting a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so

Parts of a message to examine to determine if it encourages participation in a commercial activity include:

  • Content of the message
  • Hyperlinks in the message to website content or a database
  • Contact information in the message

Accordingly, businesses should consider removing all promotional messaging, including messaging promoting the business itself (e.g. an award or ranking) from electronic messages that are not categorized by the business as being a CEM to avoid having such messages caught by CASL.

In our post next week we will cover the four key requirements of CASL and specifically the types of consent and the burden of proof.

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