Page 26 - Fall 2017 english

Second, the message must be “commercial” in nature. A message is “commercial” if it is “reasonable to conclude that it has as its purpose or one of its purposes to encourage participation in a commercial activity”.
Determining whether an email is “commercial” may be difficult. Since any commercial aspect will make an email “commercial,” for the purpose of CASL, and since the context of any links that are set out in an email will also count toward whether the email is “commercial”, prudence suggests any grey areas should be resolved in favour of the message being subject to CASL.
Assume that an email you plan to send is a CEM - what are your obligations? There are three: obtainingconsent,includingidentifi- cation information and having a functional unsubscribe mechanism.
The consent requirement
The rule is that any CEM can only be sent with the recipient’s consent. There are three subsets to that requirement - consent can be express, implied or not required, if an exception under CASL applies. Let’s look at each type of consent in more detail below.
“The conspicuous publication provision (or “website exception”) applies if the recipient has “conspicuously published” an
email address (for example, on a website)... “
Express consent
Express consent arises when a person takes action to respond to a request for consent. This most frequently occurs when an email asks you to click on a box, to provide your consent.
Any request for consent must, at a minimum, explain the purposes for which consent is being sought, set out the sender’s name and contact information and indicate consent can be withdrawn through an unsubscribe mechanism. Depending on the circumstances, additional information may also be required (such as where you use a third party to send email on your behalf).
A request for consent cannot be bundled with agreement to a particular product or service (e.g. consent cannot be extracted as a condition of playing a round of golf). In addition, all consent boxes must be unchecked, as the default position, since CASL does not permit consent to be obtained on an opt-out basis.
Implied consent
The two most common types of implied consent are the existing business relationship (EBR) and the existing non-business relationship (ENBR).
An EBR arises when the recipient has either purchased a product or service from, or otherwise engaged inabusinessorgamingopportunity with, the sender.
An ENBR is relevant to registered charities, political parties and organizations and memberships, clubs and associations (essentially, a non-profit organization that provides no monetary benefit to its members). It applies if the recipient has either donated to or volunteered
26 Golf Business Canada