As summarized in our post " New Draft Regulations Soften Impact of CASL, but Concerns about Jobs and Compliance Costs Remain," revised draft regulations under Canada's anti-spam legislation (CASL) have been issued by Industry Canada.
The purpose of this post is to provide observations about the exemptions in the regulations for four new classes of commercial electronic messages.
This exemption applies to a commercial electronic message that is sent by an employee, representative, contractor or franchisee of an organization:
- to another employee, representative, contractor or franchisee of the organization and the message concerns the affairs of the organisation, or
- to an employee, representative, contractor or franchisee of another organization if the organizations have a business relationship at the time the message was sent and the message concerns the affairs of the organization or that person's role, functions or duties within or on behalf of the organization.
Key Observations: There are important limitations to this exemption that will need to be carefully considered:
- When will a message "concern the affairs" of the recipient organization or the recipient's role, functions or duties? For example, will messages sent to employees about charitable activities, employee discounts at a retailer or similar messages be covered by the exemption?
- When will one organization have a "business relationship" with another organization and when will such a relationship expire? Will "business relationship" be interpreted by reference to the finite list of "business relationships" identified in section 10(10) of CASL? Or can a "business relationship" exist even if the sending and receiving organization have not entered into a formal relationship?
Messages Sent in Response to a Request, Inquiry or Complaint
This exemption applies to a commercial electronic message that is sent in response to a request, inquiry, complaint or is otherwise solicited by the person to whom the message is sent.
Key Observations: This exemption is intended to address an unintended drafting issue created by section 6(5) of CASL, which permitted an inquiry to be sent to a business, but had no mention of replying. The new exemption allows a business to respond to a request or complaint without first obtaining consent to send the response electronically. Additionally, it relieves the business from including in the response message identity and contact information and an unsubscribe mechanism. Interestingly, there is no mention of the exemption applying only to the "first" communication, as there is in another exemption.
Messages Sent Due to a Right or Legal Obligation
This exemption applies to a commercial electronic message that is sent to:
- satisfy a legal or juridical obligation,
- provide notice of an existing or pending right, legal or juridical obligation, court order, judgment or tariff,
- enforce a right, legal or juridical obligation, court order, judgment or tariff, or
- enforce a right arising under a law of Canada, of a province or municipality of Canada or of a foreign state.
Key Observations: While, on its face, this exemption appears to have nothing but upside for businesses, it may have unintended consequences. The exemption may have the effect of expanding the meaning of the term "commercial electronic message", as prior to the draft regulations being issued, few people would have interpreted the term as covering messages sent to satisfy a legal obligation or enforce a right. While the regulatory impact analysis statement published with the draft regulations suggests that the intended scope of CASL is more appropriately dealt with in interpretation guidelines, guidelines will not be binding on courts, who will ultimately have the responsibility of giving meaning to the legislation.
Messages Accessed while Roaming in Canada
This exemption applies to a commercial electronic message that is sent by a person located outside Canada or that is sent from a computer system located outside Canada and that relates to a product, good, service or organization located or provided outside Canada that is accessed using a computer system located in Canada if the person sending the message did not know and could not reasonably be expected to know that the message would be accessed using a computer system located in Canada.
Key Observations: This exemption will have a very limited application. As a practical matter, it applies only to foreign businesses communicating with foreign customers about products provided outside of Canada. Even if these prerequisites are met, it will apply only if the sender of the message did not know or could not reasonably be expected to have known that the message would be accessed in Canada.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.