Is your restaurant ready for Canada’s anti-spam laws?

Don’t you hate receiving unsolicited emails from businesses you’ve either never heard of, or don’t remember subscribing to for their newsletters? Turns out the federal government’s got your back…sort of.

Canada is one of the last developed nations in the world to enact anti-spam legislation but, effective July 1, 2014, that’s no longer going to be the case. And in creating anti-spam rules and regulations to govern the transmission of commercial electronic messages, Canada has made up for lost time by assembling some of the strictest and unwieldy laws yet in this area.

Generally referred to as Canada’s Anti-Spam Legislation (“CASL”), the new act is intended to promote efficiency in the Canadian economy by discouraging reliance by businesses on electronic communication to carry out their commercial activities.

Unless you fall into one of the numerous exemptions, CASL broadly prohibits the sending of any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation for profit. The definition of “electronic message” casts a wide enough net to capture any means of telecommunication, including a text, sound, voice or image message. That means emails, text messages, phone calls, instant messaging and social media communications are all covered.

The biggest exception to this general prohibition is where you have express or implied consent from the recipient to send him or her the message, but that’s not as straightforward as it might sound.

First, each commercial electronic message must include, clearly and prominently, the following information: name and contact information of sender, whether the message is being sent on behalf of another person and an unsubscribe mechanism which enables the recipient to unsubscribe without incurring any cost and by using the same means by which the message was sent.

Certain relationships are automatically exempted from the requirement to obtain consent, including:

  • friends and family (a defined term which, oddly, doesn’t include siblings)
  • responding to an inquiry related to your commercial activity, or providing a quote if requested
  • messages sent between employees, representatives, consultants or franchisees of the same organization
  • messages sent to provide notice of a legal right or obligation
  • messages sent by charities and political parties
  • So what if you don’t neatly fall into one of those exemptions? Then you need either express or implied consent from the recipient. Express consent is straightforward enough to establish, but there is a certain amount of information you’re required to provide when seeking that consent.

Implied consent is a bit murkier and can be identified where:

  • the sender has an existing business or non-business relationship with the recipient. Of note to the restaurant industry, an “existing business relationship” includes a business relationship arising from the purchase of a product within two years before the message was sent
  • the recipient has conspicuously published the electronic address and the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages and the message is relevant to the person’s business (hint hint: web bios posted online maybe?)
  • the recipient has given the sender the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages and the message is relevant to the person’s business.

CASL also prohibits sending a commercial electronic message that installs a computer program on another person’s computer system without their consent.

Once CASL is in force later this year, the penalties will be severe – up to $1,000,000 for individual offenders and up to $10,000,000 for corporate offenders. As a result, the time to vet your contact lists is now. Speak with an expert about how to make sure the recipients of your promotional emails, texts, newsletters and so forth either fit within a CASL exemption to getting consent, or have already provided their express or implied consent. In auditing your customer and contact lists, it will be vital to ensure that you keep proper records of any information which evidences that consent, where necessary.

And, before you ask, yes, an electronic message that contains a request for consent to send a message is also considered to be a commercial electronic message.