CASL and Diverse Communications Media: Making It Simple

Canada’s Anti-Spam Legislation (CASL) will come into effect on July 1, 2014, setting new requirements for commercial electronic messaging. Currently, many organizations add individuals to their contact lists without consent; as long as there is an “opt out” or “unsubscribe” option, this is considered to be acceptable. CASL officially moves Canada from an “opt-out” to an “opt-in” model for messaging: only recipients who have chosen to receive messages should be contacted. But what types of communication are considered to be “commercial electronic messages”? And how does the consent requirement apply to a wide variety of different electronic media?

As CASL is coming into force shortly, your organization is probably trying to take inventory of the types of messages you send and contact lists that you manage. You are likely trying to decide which of your communications are covered by the legislation. What is and is not considered to be a “commercial electronic message” subject to CASL? The truth is that no electronic communication should be automatically ruled out.  Any electronic message, incoming or outgoing, may be covered by the legislation. Most Canadian organizations are immersed in the world of digital media, and the number of points of electronic communication may be more than initially expected.

Take, for example, a private cosmetic medical or dental practice. The practice may send emails to remind patients of their appointments. It could have a Facebook account, a LinkedIn account, and pictures on Instagram.  It might use Foursquare to talk about a conference, or even offer a mobile application to patients.Deciding which messages, sent through various media, are covered by CASL can be a challenge.  In a larger organization, these decisions can be further complicated by the varying perspectives of different departments: business areas, wanting to maximize potential communications channels and reduce overhead, may unintentionally skip some messages or consider them irrelevant, while privacy and legal areas will tend to be more deliberate and cautious. Executives are likely to want to resolve the issue as soon as possible and to minimize risk.

CASL is written so as to apply broadly to different technologies, but it is not always immediately apparent how it translates into the interface of various media platforms. CASL’s most important requirement is that promotional or marketing messages be sent only with the prior consent of recipients. Depending on the specific medium of communication, mechanisms for implementing consent will vary. However, rather than analyzing each medium, it is simpler to categorize different communications media according to a few basic features. Some media are designed to deliver messages to recipients without any pre-existing online relationship, while others can be used only to communicate with established contacts. Messaging media, in which a sender initiates a transfer of information, are also quite distinct from publication media, in which content is simply made available to web users.  Electronic communications media can be divided into a few simple categories with respect to CASL requirements:

Broadcast messaging

This covers messages sent through electronic media that allow senders to transmit information to recipients without their consent. Examples of this type of media include:

  • Email
  • Electronic mailing lists
  • FidoNet
  • Usenet
  • Internet forums:Textboard, Imageboard
  • Shoutbox
  • Bulletin Board System

Promotional or marketing messages sent through these media are considered to be commercial electronic messages and are subject to the following CASL requirements:

  • Prior consent. Messages should be sent only to recipients who have made a conscious decision to join a mailing list. Consent should preferably be obtained through a double-confirmation mechanism; for instance, people who sign up for an email newsletter by checking a box in an online form should only be sent the newsletter if they subsequently click on a link in a confirmation email.
  • Notification. Messages should have a label at the bottom of the message indicating the sending organization’s name and up-to-date contact information, and the electronic address of the intended recipient.
  • Unsubscribe option. Messages should include a visible, one-click unsubscribe mechanism that is effective immediately.
  • Access. Messages should tell recipients who to contact to manage their profile: for instance, to update their contact information, or to ask what information the sender has about them or why they were added to a mailing list.

Network messaging

Media in this category primarily occur within online social networks. What distinguishes them from broadcast messaging is that messages are sent only to people who have established some kind of connection with the sender, for example, by adding the sender as a contact or joining a group pertaining to an organization or event. These messages include those sent to:

  • Facebook friends
  • LinkedIn contacts
  • Twitter followers
  • Members of social media groups or event pages pertaining to the sender

Other media used exclusively to communicate with established contacts are:

  • Data conferencing
  • Instant messaging
  • Internet Relay Chat
  • LAN messenger
  • Talker
  • Videoconferencing
  • Voice chat
  • VoIP
  • Web chat
  • Web conferencing

Promotional or marketing messages sent through these media are considered to be commercial electronic messages, but CASL requirements apply somewhat differently in these contexts. Recipients are assumed to have consented to receive messages when they established an online connection with the sender. (Note: Recipients have consented to receive messages only through the network in which they have established a connection. For instance, it is not permissible to email members of a Facebook group unless they have separately consented to receive emails.) While not all messages (e.g., Twitter tweets) can contain an unsubscribe mechanism and contact information for the sender, these should be easily accessible within the network in question. This means that network users should have a simple means to delete a contact or leave a group, and that organizations should provide up-to-date contact information (see Notification and Access requirements above) in their network profile or page.

Online publication

With these media, users do not receive messages through a personal account, but rather choose to access online content. This content may be public (e.g., websites, webpages, blogs, microblogs, wikis) or available only to contacts (e.g., Facebook and LinkedIn profiles, social media groups and event pages). These are not considered to be commercial electronic messages and CASL requirements do not apply. However, any broadcast or network messages tied to these media (e.g., messages to Facebook friends or LinkedIn group members, email updates to blog subscribers) must conform to CASL requirements as described above.