How businesses can ensure compliance with anti-spam laws

Second phase of legislation will go into effect in January

The controversial Canadian anti-spam legislation (CASL) has created plenty of headaches for small businesses in the past year, and the problems will likely grow as the second phase of the law comes into effect in January. The CASL is an important piece of legislation that affects most business, yet it is still clouded in confusion and misunderstanding. Since the fines for violating the CASL can be immense (up to $10 million), it is vital for business owners to ensure they are complying with the law.

Commercial messages

Many business owners are under the false belief that the CASL only applies to unsolicited mass emails. The fact is that the legislation covers a broad spectrum of activities, including text messages, social media messages, and even emails sent to a single individual. Broadly speaking, the law bans unsolicited electronic communication for the purposes of commercial activity. The first part of the law, which applies to electronic communications, went into effect in July, while the second part, applying mainly to software, will go into effect January 15, 2015.

Violating the law can have major consequences, with individuals facing fines of $1 million and businesses facing penalties of up to $10 million. Furthermore, employers are held liable for the actions of their employees under the legislation. In other words, a single violation could seriously threaten the very survival of many small businesses, not to mention giving that business the unwanted designation of being a spammer.

Implied and express consent

Complying with the law comes down to ensuring that recipients of any electronic communication have given their consent to receiving that communication. The law defines consent as either implied or expressed. Express consent is fairly straightforward and is when the recipient has expressly given his or her consent to receive a commercial message from the business, such as by ticking a box when purchasing an item online consenting to receive such communications. Of course, there are still particular details that businesses might stumble over when it comes to express consent, such as ensuring that recipients provide all of the legally required information.

Implied consent can arise in a number of situations and is sometimes a bit more difficult to determine. For example, an existing relationship between the sender and recipient, such as the purchase of a product within two years before the communication was sent, could imply consent. Also, if the recipient freely gave his or her address to the sender and did not indicate that he or she did not want to receive unsolicited messages, then consent is implied, although only if the message is relevant to the business.

Legal compliance

The above is just a taste of how businesses can ensure compliance with the CASL. As stated, this piece of legislation is highly complex, but with far reaching consequences, and any business that communicates electronically with any of its customers will have to ensure compliance. Business owners should reach out to a qualified business law firm to ensure their company is in compliance with the law or if they have any other business and corporate law concerns.

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