Canadian Anti-Spam Legislation (CASL) came into effect on July 1, 2014
Commercial electronic messages (CEMs) - What are they?
How the University of Alberta is affected by CASL
Exemptions from CASL
Messages which are subject to CASL
Beware the "mixed purpose" message
Types of consent
What to include in your CEMs
Requirements for unsubscribe mechanisms
Securing express consent
CASL regulates the distribution and receipt of Commercial Electronic Messages (CEMs) in Canada. CASL also prohibits the unauthorized altering of transmission data; the installation of computer programs without consent (e.g., viruses, spyware); and the provision of false or misleading information either in the content of your message or the sender information.
CASL imposes administrative monetary penalties for non-compliance of up to $10 million for organizations. After July 1, 2017, anybody who receives a CEM without providing their consent has a private right of action against the organization sending the CEM, and may be able to receive up to $200 per violation.
A Commercial Electronic Message (CEM) is defined as any message to an electronic account (e.g. emails, text messages, and messages using social media websites) that encourages participation in a commercial activity. A “commercial activity” is defined under CASL as “any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit.” Examples include purchasing, selling, bartering or leasing products, goods or services, or land; providing a business, investment or gaming opportunity; or advertising or promoting any of these activities.
As a public education institution, the University of Alberta is not a commercial entity and any electronic messages that communicate, support, or promote the U of A’s core mission and mandate are not of a “commercial character.” Thus, most of the U of A’s electronic messaging is not subject to CASL. In addition, the university has taken the position that members of the Alumni Association are members of a "club, association or voluntary organization" within the meaning of CASL, thereby giving the university automatic implied consent to send CEMs to alumni members until that consent is withdrawn. However, if a message, not being sent to alumni, does not relate to the U of A’s core mission and mandate, CASL may apply if the message has a commercial character. Please read the following "exemptions" and "subject to" lists carefully to determine whether or not the electronic message you intend to send falls under CASL.
Any message to alumni, and in addition, key examples of electronic messages that communicate, support, or promote the university’s core mission and mandate, or are otherwise exempt from CASL include:
- Communications about U of A’s research, teaching, community outreach, and other core activities
- Student recruitment, or promotion of courses or academic programs to prospective or current students
- Faculty or staff recruitment, or promotion of courses or U of A educational programming for the purposes of professional development
- Promotion of U of A-run concerts, plays, art exhibits, summer camps, and athletic events
- Promotion and sale of products and services that are connected to student life and educational programming
- Promotion of student housing services or campus food services
- Promotion of events, activities, and goods that are specifically designed to raise funds for the U of A
- Solicitations for donations to the U of A
Key examples of electronic messages that are likely considered commercial and therefore subject to CASL:
- Promotion of third-party commercial products, goods or services (e.g. preferential credit card rates for alumni, computer discounts)
- Promotion of products and services by UAlberta Bookstore that are not connected to student life and a student’s education (e.g. branded merchandise)
- Promotion or recruitment of students for programs run by non-UAlberta organizations
- Promotion of conferences, workshops or events offered or organized by non-UAlberta entities
- Promotion of UAlberta-sponsored events or services that are not related to the university’s core education and research mandate (Festival of Ideas, UAlberta Press publications sales, rental of facilities, child care services)
- Messages relating to the licensing and commercialization of discoveries of UAlberta researchers
Any electronic communication that includes, even in small part, a commercial electronic message renders the whole communication “commercial” and thus subject to CASL. “Mixed purpose” messages can only be sent to recipients from whom the U of A has implied or express consent. Examples of mixed purpose messages include:
- Newsletters that include advertisements from or promotion of sponsors, affinity partners, or non-educational U of A merchandise
- Newsletters that include the promotion of third-party events, conferences, programs, etc.
Under CASL, CEMs can be sent to recipients who have given implied or express consent to receive such messages.
Implied consent - is given when the recipient begins a business, volunteer or donor relationship with the U of A. Implied consent exists for the duration of the relationship plus an additional two years, unless such consent is otherwise revoked. If and when that relationship ends (e.g. contract ends, term on Alumni Council ends), the University has two years after the date of termination in which to receive express consent. If express consent is not given, communication of CEMs must cease.
Express consent - is not time-limited but must be formally sought from the individual, recorded and stored in order to show proof that express consent has been received. Express consent is best secured in writing, but can also collected orally. Individuals may provide their consent in various ways: e.g., by signing a document, sending you an email, entering information into a webform, or clicking on an “I Accept” button. Once you have secured someone’s express consent, then you may continue to send them CEMs indefinitely unless the individual “unsubscribes” from further messages.
Additional information on what constitutes implied and express consent can be obtained from the U of A’s Office of General Counsel
Under CASL, all CEMs must include:
- A clear method for the recipient to unsubscribe from the list or to alter his or her preferences regarding electronic messages
- The name of the UAlberta unit sending the message
- Contact information for the unit (or a link to a website containing this information):
- telephone number and/or email address and/or web address
It is best practice to include such information in non-commercial electronic messages as well.
All electronic messages must give recipients the opportunity to unsubscribe from future communication of CEMs. Your unsubscribe mechanism must be easy to access and use. Your unsubscribe mechanism must be valid for at least 60 days after you send the CEM. If you receive a request to unsubscribe, you have to comply within 10 business days.
When you send CEMs by email, you may offer one or both of the following unsubscribe methods:
- Unsubscribe by clicking on a link that will take the user to a web page where he or she can unsubscribe
When you send CEMs by text message, then you must offer both of the following unsubscribe methods:
- Unsubscribe by replying to the text message with the word “STOP”
- Unsubscribe by clicking on a link that will take the individual to a web page where he or she can unsubscribe
Model unsubscribe language is available here.
Express consent must be presented as an “opt-in” option, not an “opt-out.” To secure somebody’s express consent, you have to identify:
- The specific purpose for which you are seeking their consent
- The name of the University of Alberta unit seeking consent
- The following contact information for the University of Alberta unit seeking consent (or a link to a website containing this information):
- telephone number and/or email address and/or web address
- a statement indicating that the person whose consent is sought can withdraw their consent
If oral consent is obtained, the same information set out above needs to be obtained from and/or provided to the person whose consent is being sought. In addition, in order to establish the onus that you have properly obtained the person’s consent, oral consent must:
- be capable of being verified by an independent third party, OR
- be contained within a complete and unedited audio recording of the consent
Because express consent must be “opt-in,” rather than “opt-out,” if you are using a check-box to secure consent, the individual providing consent must actively check the box to explicitly indicate his or her consent. The box cannot be “pre-checked.” Here is an example of an acceptable consent mechanism using a check-box: