E-mail B2B/B2C

Subject to limited exceptions, companies are prohibited from sending direct marketing e-mails, referred to as “commercial electronic messages” (CEMs) under Canada’s Anti-Spam Legislation (CASL), to individuals and organizations unless:

  • the person (individual or organization) has explicitly consented to receiving it; and
  • the message contains: information that identifies the person who is sending the message and the person – if different – on whose behalf it is sent; information enabling the recipient to readily contact the sender and person for whom it is being sent; and an unsubscribe mechanism.

Note: a CEM is defined as an electronic message that one could reasonably conclude (based on the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message) has as its purpose, or one of its purposes, to encourage participation in a commercial activity. This is interpreted by the regulator to include advertisements and information about promotions, offers, business opportunities, events, etc.  CEMs can include not only mass emails, but also one-to-one messages.

B2c

Opt-in situations

As noted above, express opt-in consent is generally required to send CEMs to individuals. For example, consumers must check a box to proactively indicate to the business their consent to receive CEMs.  Obtaining consent as part of a larger privacy policy or other agreement is considered by the regulator to be insufficient.  Any requests for opt-in consent must contain: information that identifies the person who is requesting consent and the person – if different – on whose behalf consent is being requested; information enabling the recipient to readily contact the person who is requesting consent. In addition, it must explicitly indicate that consent may be withdrawn.

 

 

Exception for referrals

As an exception to the general requirement for opt-in consent, a single message may be sent, without consent, to an individual following a referral by another individual who is known (either professionally or personally, as defined in regulations) to the person making the referral.

Opt-out situations

The only other exception that permits the sending of a CEM without explicit consent is where there is an “existing business relationship” between the sender (or the party on whose behalf the message is sent) and the recipient.  An existing business relationship is deemed to exist if there has been a commercial transaction between the sender (or the party on whose behalf the message is sent) and a consumer within the last two years, or inquiry or application by the consumer to one of these other parties within the last six months.

In all cases, senders of CEMs must give effect, within 10 business days, to a recipient’s request to unsubscribe.

B2B:

There are more exceptions/exemptions that allow organizations to send CEMs to businesses without consent, than there are for sending CEMs to consumers.

Exemption

An organization is permitted to send a CEM to an employee or representative of another organization, if:

  1. there is a relationship between two business organizations that includes active engagement by the recipient organization (Note: having received previous CEMs from the sender does not, of itself, create the required relationship), and
  2. the CEMs are relevant to the recipient’s business, role, functions, or duties in a business or official capacity.

Messages that meet these two criteria are fully exempted from CASL, and need not include an unsubscribe mechanism or the usually-prescribed identification and contact details.

Opt-out situations

There are exceptions for CEMs sent to businesses where the email address of the recipient has been conspicuously published (such as on a company’s website, or in a directory in which the recipient has knowledge/control of their inclusion) or where the recipient has directly disclosed their email address to the sender, such as through the presentation of a business card.  In these cases, the exceptions are available only where 1) the conspicuous publication or presentation was not accompanied by an indication that the addressee did not wish to receive CEMs, and 2) the CEM is relevant to the recipient’s business, role, functions, or duties in a business or official capacity.

Opt-in situations

Opt-in consent is required to send CEMs in cases where there is no relationship between organizations, and no publicizing of contact information of members within the organization.  Any requests for opt-in consent must include the same disclosures described above for B2C opt-ins. For the opt-out and opt-in scenarios above, senders of CEMs must give effect, within 10 business days, to a recipient’s request to unsubscribe.