That time of year is now upon us when we send season’s greetings and well wishes for the New Year. The holidays present a wonderful opportunity to reach out to your customers and the general public alike to let them know that you are thankful for their business and give them a little “nudge” to remind them that their patronage is appreciated. A lot of companies also take this opportunity to hold a holiday “open house” or offer special holiday discounts on their products, goods, and services. But what are the implications of sending these seemingly innocuous seasonal greetings? The answer may be more complicated than you think under Canada’s Anti-Spam Legislation1 (the “Act” or “CASL”).
Defining Commercial Electronic Messages
As we all (are deemed to) know, the Act is directed at regulating commercial electronic messages, or CEMs. But what is a CEM? This phrase is defined very broadly in s. 1(2) of the Act to include an electronic message that, as one of its purposes, encourages participation in a transaction of a commercial character, whether or not there is an expectation of profit, and includes electronic messages that:
- offer the sale or lease of products, goods, or services;
- advertise or promote the sale or lease of products, goods, or services, or
- promote a person or business that offers the sale or lease of products, goods, or services.
Now, whether or not your particular holiday greeting falls under CASL will depend on whether the message is truly benevolent, but in most cases, the simple act of sending a holiday greeting is intended, at least in part, to promote your business. Of course, there are certain exemptions from CASL, such as those listed in s. 3 of the Electronic Commerce Protection Regulations2; however, these exceptions are limited, particularly so given the underlying nature of holiday greetings. So, what are the implications of this? Will CASL stymie your efforts to give glad tidings over the holiday season? Will the CRTC be the miserly curmudgeon we all want to avoid this holiday season? Assuming you or your business engages in activities of a commercial nature and you are sending your holiday well wishes via email (or other electronic means), it is safe to assume that your otherwise affable message falls under the purview of CASL and compliance with the Act is required.
Satisfying Consent and Form Requirements Under CASL
Where does this leave us? CASL has two overarching requirements: consent and form. In the case of an electronic holiday greeting, the form aspect is relatively easy to comply with – simply ensure that any holiday message includes the unsubscribe mechanism and contact information required under s. 6(2) of the Act.
The trickier part is determining whether or not you have obtained the consent required under CASL to send your holiday greeting. Under CASL, consent can be express or implied. If you have obtained express consent to otherwise send CEMs, and your message contains the required information under s. 6(2), go ahead and spread some good cheer! You’re complying with CASL.
For those of you that do not have express consent to send CEMs, luckily consent can be implied where you have an “existing business or non-business relationship” with the intended recipient.3 This basically means that, providing your holiday message otherwise complies with the form requirements of CASL, you can send a greeting to any person with whom you engaged in a business transaction in the preceding two year period.
If you are a registered charity, a political party or organization, or a person who is a candidate for publicly elected office, you may also send holiday greetings to persons who, in the preceding two year period, made a donation or gift to you, performed volunteer work for you, or attended a meeting organized by you4. Clubs, associations, and volunteer organizations may also send CEMs to persons who have been accepted as a member of their club, association or volunteer organization in accordance with its membership requirements, in the preceding two year period5.
The above scenarios are helpful when reaching out to existing customers, but do not go very far in attracting new business. Where many are likely to run afoul of CASL is in the erroneous assumption that they may rely on the conspicuous display or disclosure of an electronic address, or on a referral, to send a seasonal note.6 While it is possible to rely on these sections, it is important to note that consent may only be implied in these situations where the CEM is relevant to the recipients’ “business, role, functions or duties in a business or official capacity,” and one should take care to ensure that the holiday greeting is worded carefully enough to satisfy this requirement.
Implications of Non-Compliance
As can be seen from the above, the application of CASL to holiday greetings may be a perfect example of the law of unintended consequences. However, given its broad application and corresponding dearth of interpretation of key provisions of the Act, the prudent approach is to ensure your holiday greetings are CASL compliant. So, before you send that holiday message, you would be wise to consider whether or not you have complied with CASL or you run the risk of a holiday hangover in the form of an investigation by the CRTC.
For questions on Canadian intellectual property law, including Canada’s evolving anti-spam regime, acquiring, registering, transferring or licensing trade-marks and copyrights, or other aspects of Canadian intellectual property law, please contact Kristen Murphy, Athar Malik, or another member of Cox & Palmer’s Intellectual Property & Technology team.
1 Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23.
2 Electronic Commerce Protection Regulations, SOR/2013-221 (the “Regulations”).
3 See s. 10(9)(a) of the Act.
4 See s. 10(13)(a)-(b) of the Act.
5 See s. 10(13)(c) of the Act, and s. 7 of the Regulations.
6 See ss. 10(9)(b) - (c) of the Act, and s. 4(1) of the Regulations, respectively.
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Good Tidings, Well Wishes and Unintended Consequences: Holiday Greetings under Canada’s Anti-Spam Legislation