PART 3: If It Doesn’t Look Like a Commercial Electronic Message, It’s Still Probably a Commercial Electronic Message!
By Adam Dwek
Continuing a multi-part discussion on CASL, this article looks at what messages constitute Commercial Electronic Messages (a “CEM”) under CASL, Canada’s New Anti-Spam Legislation. As of July 1st, 2014 CASL provisions will place a variety of restrictions on what electronic messages can be sent, and what information they must include. As you’re about to find out, some electronic communications that you might not consider to be a CEM are, and vice versa.
What Makes a Message a CEM?
CEMs include any electronic message for which it can be reasonably concluded has, as one of its purposes, the encouragement or participation in any act, conduct, or transaction that may be considered a commercial activity.[1] This includes any offer to sell, lease, purchase, or invest; provide goods or service; advise of a business, gaming, or investment opportunity; or even just promotes a person as being a person who does or intends to do any of the above activities. There does not even have to be an expectation of profit on
the part of the sender for a message to be of a commercial character and therefore a CEM.[2] The message can also have a million other purposes, but as long as there can be found some commercial purpose in the message, it’s considered a CEM.
In determining whether a message has a “commercial activity” as one of its purposes, not just the content of the message is considered. Any hyperlinks in the message and the content of websites and databases linked will also be considered.[3]
Emails and text messages may be CEMs, but so may any other type of electronic message that fits the above description. Think of Facebook, Twitter, and LinkedIn to name a few.
Does my Signature make my email a CEM?
Electronic signatures alone do not turn an otherwise non-commercial electronic emails into a CEM, but if the email includes a tagline that promotes you (or your business or a business), including the public image of you, as being a person who provides commercial services, goods, or property (including the buying, selling, brokering, bartering, etcetera thereof) then the message is most likely a CEM.
But My Message Is So Short – Does CASL Apply?
CASL requirements are still there for short messages. CASL information may take up most of what’s in your CEM. For very short SMS messages, you can get away with not including the required information and unsubscribe mechanism in the message itself by having a clear and prominent hyperlink to a webpage on the World Wide Web that contains all the identifying and contact information as well as the unsubscribe mechanism.
What About Banner Advertisements?
Banner advertisements are permitted, as IP addresses alone do not fit CASL’s definition of an “electronic address”. Because these advertisements are never sent to an “electronic address” as defined in the Act, they therefore never meet the definition of a CEM and do not offend CASL.
What About Facebook, Linked-in, Twitter and Other Social Networking Sites?
The regulations exempt messages sent and received on electronic messaging services provided the requirements regarding identification and the opt out mechanism are conspicuously displayed on the user interface. So for example, messages on Facebook need not contain an opt-out mechanism or information regarding the sender because you can see who sent the message and you can also block or unfriend the party that sent it to you. Even though a message on Facebook may fall short of the CASL requirements in other ways, messages on social networking sites are exempt from the CASL requirements, provided they have express or implied consent.
Someone Added my Business to Facebook – Can My Business Send Them a CEM?
No. As defined in the Act, neither express nor implied consent would be given merely by a person adding your business to Facebook or liking its posts.[3] Check out Part 1 for what constitutes express and implied consent respectively. But now that they have made their electronic address (their Facebook address) conspicuously available to you, your business would be permitted to send them a CEM if it relates to their official capacity in a business.
Conclusion
Understanding what constitutes a CEM is essential to knowing what messages and commercial activity your business can rely on. Unfortunately what constitutes a CEM is not obvious at first or even second glance. Hopefully this article and the previous ones give you a better idea of what messages constitute a CEM, and what messages you can and cannot send.
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References and Footnotes
- An Act to promote the efficiency and adaptability of the Canadian economy by regulation certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (the “Act”), Section 1(2) ↩
- the Act, Section 1 ↩
- The Act, Section 10(1) for express consent; section 10(9) for implied consent. ↩
- The Act, Section 10(1) for express consent; section 10(9) for implied consent. ↩
