• Countdown to Canada’s New Anti-Spam Law: Issues You Need to Know and Act On Now - Issue #4
  • January 29, 2015 | Author: Samantha C. Kernahan
  • Law Firm: McLennan Ross LLP - Edmonton Office
  • Canada’s new Anti-Spam law and regulations (“CASL”) come into effect on July 1, 2014. The purpose of CASL is to limit the sending of commercial electronic messages (“CEMs”) without the consent of a recipient. However, CASL grants certain exceptions to the requirement of consent before sending CEMs. Employers should take note of the consent exceptions that apply within the employment context so that internal business communications are not disrupted or subject to doubt due to this new law. In this fourth “CASL Countdown Alert”, we will highlight the consent exceptions that are available to employers for the purpose of internal business communications.

    CASL expressly states that the consent required to send a CEM does not apply where the CEM solely:

    provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled. [emphasis added]

    Employers should also bear in mind that, regardless of how broad CASL’s definitions of “commercial activity” and “CEM” may be, most employer-employee communications will not fall within those definitions and thereby are not subject to CASL at all. Instead, it is pertinent for employers to acknowledge that some communications with employees fall within the definition of “commercial activity” under CASL because of the “commercial character” of such communications (i.e. promoting a new benefit plan, offering discounts at local retailers, and possibly a wide variety of content). Where this definition applies, employers are able to send CEMs to employees without consent where the relationship between employer and employee is current. Reasonable facts would determine the currency of the relationship.

    Exception to Consent Requirement under CASL’s Regulations
    CASL’s Regulations, introduced in December 2103, provide employers with additional freedom to operate outside of CASL’s consent requirements. The Regulations provide that the requirement of consent does not apply to a CEM:

    1. that is sent by an employee, representative, consultant or franchisee of an organization
    i. to another employee, representative, consultant or franchisee of the organization and the message concerns the activities of the organization, or
    ii. to an employee, representative, consultant or franchisee of another organization if the organizations have a relationship and the message concerns the activities of the organization to which the message is sent.

    Clearly, this provision includes freedom for parties other than employers. However, as an employer plans for CASL compliance, which necessarily includes vetting of its internal business communications transacted by electronic means, it should be a great relief to have this wide CASL exception apply to those parties which are the employees and agents of the business itself.