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Anti-spam compliance and messaging through social media

On July 1, 2014, Canada’s Anti-spam Law (“CASL”) came into effect. CASL regulates the sending of “commercial electronic messages” without the express consent of the recipient and further limits the grounds giving rise to implied consent. The Canadian Radio-Television Commission (“CRTC”), one of the federal agencies tasked with enforcing CASL, has reported receipt of over 50,000 official complaints regarding CASL non-compliance since July 1st. Clearly, Canadians are taking CASL violations very seriously. Steep monetary penalties are available to the CRTC to sanction CASL non-compliance. On July 1, 2017, a private right of action (a claim actionable in a court of law) will be available to members of the public in order to pursue CASL non-compliance without the help of CRTC regulators.

CASL is commonly understood to apply to “spam emails”, or unsolicited mass advertisements for a product or service. However, CASL is not so limited in its application. Instead, CASL applies to all “electronic messages” sent to an “electronic address”.

However, what exactly is an “electronic address”? According to CASL, an electronic address is “an address used in connection with the transmission of an electronic message”. Clearly, CASL regulates a greater scope of content than spam emails.

What, then, are the implications of CASL on use of social media to send messages? Sending messages through social media platforms is so commonplace that it is possible to overlook the obvious: membership within a social media platform provides an individual electronic address to which all forms of electronic messages may be sent. The sender and recipient of an electronic message sent through social media are not necessarily connected through family or personal relationship, such that CASL would not apply. As a result, it is necessary to consider CASL compliance and use of messaging through social media.

To be clear, CASL does not apply to content posted to a website, blog or the content creator’s own social media page. However, if that content creator were to engage the messaging functionality of a social media platform in order to “reach out” to another member of the platform, CASL is likely to apply.

As an example, the popular social media platform LinkedIn offers messaging functionality known as InMail so that one LinkedIn member may send an electronic message to another member and have that message show up on the latter member’s LinkedIn page. According to the CRTC, a social media platform account is akin to an “electronic address” as defined by CASL. Therefore, messages to other users of a social media messaging system would qualify as sending electronic messages to “electronic addresses”.

Again, CASL imposes strict requirements regarding consent prior to sending electronic messages as well as minimum content requirements for all electronic messages. Does this mean the end of social media messaging if a family or personal relationship does not exist between sender and recipient?

Thankfully, no, but with provisos. The CASL Regulations provide for an exclusion from CASL’s consent requirements specifically targeted at social media messaging through services like InMail. Put simply, so long as:

  • the message sent though social media includes the sender’s contact information as well as an unsubscribe mechanism as outlined by CASL; and
  • the recipient is an active member of the social media platform who has agreed to its terms of use expressly or by implication

then such messages are excluded from CASL’s strict consent requirements.

It is clear that use of any social media platform by an individual or organization is based on acceptance of ‘terms of use’ mandated by such platform. These terms of use create a specific ‘space’ in which users have agreed (or are deemed to have agreed) to rights and obligations that apply to that space. By implication, this includes acceptance of messaging services that are linked to a member account. CASL’s Regulations draw on this acceptance to imply consent to receive electronic messages.

Nonetheless, CASL’s Regulations expressly provide that a message sent using a social media platform must contain:

  • information that identifies the person who sent the message and the person – if different – on whose behalf it is sent;
  • information enabling the person to whom the message is sent to readily contact one of the persons referred to above; and
  • an unsubscribe mechanism in accordance with CASL’s requirements.

CASL provides that an unsubscribe mechanism must:

  • enable the person to whom the message is sent to indicate, at no cost, the wish to no longer receive any messages, or any specified class of such messages, from the person who sent the message or the person – if different – on whose behalf the message is sent;
  • enable the person to unsubscribe using the same electronic means by which the message was sent or by another practicable means; and
  • specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.

As a result, CASL carves out an exclusion from its consent requirements for sending messages through services such as InMail but only where the CASL regulations applicable to social media messaging are satisfied.

Samantha Kernahan (skernahan@mross.com), Associate
Republished with permission from McLennan Ross Edmonton Office

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