Canadian Anti-Spam Legislation (CASL) Rules for Digital Marketers

If you own a small business, work in marketing or communications, and work in Canada, you’re probably familiar with the Canadian Anti-Spam Legislation (CASL).

For anyone less familiar with the Canadian Anti-Spam Legislation: it is a set of rules and requirements that companies must follow when sending commercial electronic messages from Canada, or to Canadians.

This affects all email marketing programs, and many digital advertising campaigns too.

Your organization must have a process to ensure you do not violate the Canadian Anti-Spam Legislation rules. But don't worry - we're here to break everything down for you into simple, straightforward terms so that you can ensure your company is in full compliance. 

What is the Canadian Anti-Spam Legislation for?

CASL restricts the sending of unsolicited Commercial Electronic Messages (CEMs) and the installation of computer programs. It is the Canadian equivalent of the American CAN-SPAM Act, or the European General Data Protection Regulation (GDPR).

The Canadian Anti-Spam Legislation has some stark differences compared to the CAN-SPAM Act and GDPR, but the overarching goal behind these regulations is the same: to protect consumers and businesses from spam and other digital threats.

What are Commercial Electronic Messages (CEMs) under CASL?

The Canadian Anti-Spam Legislation is a series of rules set in place by the Canadian Chamber of Commerce to restrict companies and individuals from sending Commercial Electronic Messages to Canadians. So, what exactly does that mean, and what are Commercial Electronic Messages? 

"Under CASL, electronic messages can include emails, SMS text messages, instant messages and messages sent through social networks. CASL defines a CEM as a message that encourages participation in a commercial activity. This includes advertisements and information about promotions, offers, business opportunities, events, etc."  - The Canadian Chamber of Commerce

- Emails

- SMS Text Messages

- Instant Messages

So any individual or organization marketing to a Canadian target audience is affected by CASL and has to adhere to its legislation. 

It's important to note that Canada's Anti-Spam Legislation doesn't relate to phone calls. So, you don't have to worry about your telemarketing programs. You can still make unsolicited phone calls in Canada (although nowadays, everyone has caller ID so you likely won't get anywhere with attempted cold calls!). 

How to comply with CASL: Obtaining Implied Consent

If you plan to launch an email marketing campaign or an SMS text marketing program targeting a Canadian audience, you must follow the Canadian Anti-Span Legislation (CASL) and obtain the appropriate type of consent. You need either implied consent or express consent before sending your sales and marketing messages. 

You have obtained implied consent if someone has made a purchase from you within the last two years or has made an inquiry within the last six months. During this timeframe (two years or six months), you may contact them via email, text, and messaging. If you wish to continue contacting them beyond this period, you must obtain express consent. 

How to comply with CASL: Obtaining Express Consent

If someone has told you that they would like to be messaged or emailed by you, then they have given you express consent and you are allowed to send them emails and messages. Express consent can be given verbally or in writing, but typically digital marketers and companies collect it through an online form with a checkbox. When collecting express consent through a form online, here are a few important guidelines to note, to ensure you abide by the Canadian Anti-Spam Legislation: 

• The checkbox on your form must be in a default position of being unchecked.

  The contact must be the one to check the box. 

• Terms and Conditions cannot be bundled in with the express consent checkbox.

  What this means is that contacts must have a checkbox to subscribe to your emails or messages, and a separate checkbox to agree to your T&Cs (if you have T&Cs).

• You must notify the contact that they can unsubscribe at any time.

  You must always include an Unsubscribe mechanism in your emails and messages to them. 

• You must identify yourself.

  You must identify yourself with your name and mailing address, along with either your phone number, website URL, or email address (ex. in the footer of your web page).

• You must clearly state what they are subscribing to.

  For example, you can say "Subscribe to our weekly newsletter for tips on digital marketing in the IT industry."

• You must obtain proof that you have collected express consent.

  There are no specific guidelines offered by CASL for this requirement; however, the more data you can retain, the better. For example, the date and time they provided their email address or phone number and subscribed, their IP address, the web page where they opted in, etc.

What are the repercussions if I don't adhere to Canada's Anti-Spam Legislation?

Private individuals and organizations that are affected by a violation of Canada's Anti-Spam Legislation can seek legal redress through civil actions. 

“What happens if I don’t comply,” you ask? It could mean a hefty fine. According to FightSpam.ca, “Penalties for the most serious violations of the Act can go as high as $1 million for individuals and $10 million for businesses.” 

Want more info? Click here to read the full text of the Canadian Anti-Spam Law. 

How to Evaluate Implied Consent Subscribers

We’ve tried to clear up any grey areas so you can properly clean up your email marketing lists. Follow these steps toward CASL compliance: Make sure you fully understand the difference between implied consent and express consent.

1. Assess your subscriber list to determine who has given implied consent – this is a great opportunity to clean out your database and subscriber list and assess who is active and who is dormant.
2. Request express consent from your implied consent contacts – send a specific CASL opt-in email.
3. Remove contacts who do not respond to your express consent request once they no longer qualify under the implied consent guidelines. Contacts are only qualified under implied consent terms for 6 months or 2 years. Jump to "How to Comply with CASL: Obtaining Implied Consent" for more details.
4. Swiftly process unsubscribe requests.
5. Keep and maintain all records of express consent – the burden of proof of consent lies with the sender of the message.
6. Regularly audit your subscription list to ensure you are compliant.

GamePlan Marketing Can Help

Reviewing, updating, and cleaning your email list can be an arduous task, especially if you have a significant list of subscribers. Compliance is serious, and GamePlan Marketing strongly endorses all privacy regulations. Contact us now to see how we can help you safely transition your email list database and marketing strategies so they comply with Canada's Anti-Spam Legislation rules.

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GamePlan Marketing is a Full-Service Creative & Digital Agency located in the Oakville, Greater Toronto Area in Canada. We Specialize in Digital Marketing for B2B Technology Companies.

We are always here to keep you posted on updated rules and regulations that govern online marketing. However, this information is not meant to be interpreted as legal advice and if you have specific legal questions, we recommend that you contact your attorney. This blog was originally published in March 2017 but has been updated for freshness and republished in July 2024.