Error!

Dissecting CASL: part 1

3 common misconceptions about Canadian anti-spam law

and how they can bite you in the ass
Angry tiger

"Anti-spam” sounds like a good thing, right?

"Awww! They are after that guy who's been sending Viagra emails to me every single day since I was 15! They will finally get him, and make him SUFFER!" you probably think.

Wrong!

The Viagra guy is going to be the last person to even notice CASL (Canada's Anti-Spam Legislation).

Yes, what he sends is clearly spam by all possible and impossible definitions, but... how exactly are they going find him?

Who are easy to find are Canadian and American businesses.

(wait, don't panic just yet)

Over the last 3 years, CASL completely redefined what spam is
(in case you didn't know, CASL is already in effect, it has been since July 2014).

(you may start to panic lightly here)

Worst of all, CASL is not one of the laws where you can rely on common sense to be compliant.

(yep, that's where you panic all you want)

Alright, let the show begin!


Misconception #1: “I’m not He-Who-Must-Not-Be-Named [a spammer]! I don’t send hundreds of emails to random people, I just send cold emails every now and then to potential leads. I have nothing to worry about.”

Email spam

Let’s take a look at some official sources.

"A Commercial Electronic Message (CEM) is a message whose purpose is to encourage participation in a commercial activity."

Source: Canada's Anti-Spam Legislation - fightspam.gc.ca
To find this exact quote: go here and search for 'Do I send "Commercial Electronic Messages"'

In other words, if your message is even remotely intended to sell something, it is a Commercial Electronic Message (CEM), which is pretty much 100% messages you send to your leads or customers. Let’s be serious here, why would you ever send them a message that doesn’t “encourage participation in a commercial activity”?

Now let’s figure out what makes your CEM spam.

If you are lazy to read all the sources, I'll summarize it nicely. You are screwed if:

  • If you don’t have recipient's implied or express consent
  • AND / OR
  • If you don’t include contact information and/or unsubscribe mechanism

I'll even put it in a pretty table:

Spam not spam table

See the pattern? Even if you have the precious express consent (which is DAMN difficult to get), but don't include proper contact information or unsubscribe mechanism, you are... basically sending spam.

Nice, huh?

Want to see sources? Here are some (if you want my opinion, you should never trust strangers on the internet):

Casl info cem

Source: Canadian Radio-television and Telecommunications Commission - www.crtc.gc.ca
To find this exact image: go here and search for "Information to be Included in a Commercial Electronic Message (CEM)"

We are also going to need this:

What Must be Included in Each CEM?

  • Clearly identify yourself
  • Provide a method where the recipient can readily contact you
  • Provide a working unsubscribe mechanism:
    • Functional for 60 days
    • No cost
    • Same means unless impracticable
    • Include either electronic address or link
    • Must process without delay

Source: Canada's Anti-Spam Legislation - fightspam.gc.ca
To find this exact quote: go here and search for "What Must be Included in Each CEM?"

Oh, and also this:

Casl info consent

Source: Canadian Radio-television and Telecommunications Commission - www.crtc.gc.ca
To find this exact image: go here and search for "Express Consent Versus Implied Consent"


Misconception #2: “I'm not personally liable. I registered my business as a corporation for this exact reason - to avoid personal liability. I'm invincible like Bruce Willis in the movie 'Invincible'.”

Bruce willis

As sad as it may sound, even if your business is a corporation, you (you personally) may be held liable. In fact, there has already been a precedent. Couch Commerce Inc. violated CASL in 2014. The CEO, Mr. Halazon, was found personally liable. $10 000 for a few emails with incorrect unsubscribe mechanism.

Take a look at this:

Can directors and officers be liable too?

Yes, directors, officers, agents and mandataries of a corporation can be liable, if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation.

Source: Canadian Radio-television and Telecommunications Commission - www.crtc.gc.ca
To find this exact quote: go here and search for "Can directors and officers be liable too?"

Now let's look a little closer at the Mr. Halazon's case:

The investigation alleged that commercial electronic messages (CEMs) were sent or caused or permitted to be sent by Couch Commerce to recipients without a compliant unsubscribe mechanism during the period of 2 July 2014 to 9 September 2014, while Mr. Halazon was CEO of Couch Commerce.
More specifically, it was alleged that the unsubscribe mechanism did not function, or could not be readily performed, or unsubscribe requests were not given effect until more than 10 business days after a request has been sent. It was also alleged that Mr. Halazon was personally liable for this violation pursuant to section 31 of the Act.

Source: Canadian Radio-television and Telecommunications Commission - www.crtc.gc.ca
To find this exact quote: go here and search for "Acts and omissions covered by the undertaking and provisions at issue"

Please note, not a word about implied/express consent. Not even about complete absence of an unsubscribe mechanism. Mr. Hazalon got in trouble because the unsubscribe mechanism in his messages was incorrect.


Misconception #3: ”I can only get in trouble if somebody sues me. Who would ever go through the pain of a lawsuit just to win a couple of hundreds dollars (which they may even be unable to collect?)”

Law hammer

In a way, CASL is similar to criminal law: if you kill somebody, you go to jail even if nobody presses charges.

In fact, nobody can sue you unless they suffered damages (and what kind of damages can possibly happen from spam?). I also said “Woo-hoo!” here when I first heard it. Wrong.

Messing with CASL is like messing with CRA. If they find something they don’t like, your life is over.

I got this answer from a lawyer, once I get her official permission to publish her name and her actual words, I will do so.

By Jane Vern