Entertainment Law Author: Juliana Mah & Andrew Hennigar So you are getting ready to send holiday e-cards. All you need to do is “select all” on your contact list and send away, right? Wrong. Under Canada’s anti-spam legislation (CASL), which came into force last year, and the recent penalties imposed by the Canadian Radio-television and Telecommunications Commission (CRTC), sending out holiday e-cards now requires more consideration. With maximum penalties of $1 million for individuals and $10 million for businesses per violation, the stakes are high to avoid being on CRTC’s naughty list. The CRTC has yet to say – and may never say – definitively whether holiday e-cards are “commercial electronic messages” (CEMs) to which CASL applies. If/when CRTC does provide guidance, it is likely there will be shades of grey. A holiday e-card with a link to a 20% discount for your company’s products is likely to be viewed differently from a simple ‘Happy Holidays’ greeting card. To be prudent, you should work on the assumption that holiday e-cards are CEMs until the CRTC advises otherwise. So, to whom can you send holiday e-cards, and how do you go about it? Generally, in the context of a company sending holiday e-cards, unless you have a “personal relationship” with the recipient, you must obtain express consent from the recipient, or be eligible to rely on one of the following implied consent exceptions:
  • For current customers or clients, sending holiday e-cards is currently permitted under CASL. This will become more limited beginning in July 2017 when certain CASL provisions will begin to apply to define time limitations on what is a “current” customer or client.
  • For target customers or clients, sending holiday e-cards is permitted if (a) the person has disclosed his or her contact information (e.g. by handing you her business card or conspicuously publishing her contact information on a website), and (b) the person has not indicated she does not wish to receive CEMs, and (c) the message is relevant to her business, role, functions or duties.
Determining whether you have a “personal relationship” is a subjective assessment in which you should consider the basis for that relationship (sharing interests, experiences, opinions, information) as well as factors such as the frequency of contact, and whether you have actually met the person. Keep in mind that you cannot keep contacts who have only given you or your company implied consent on your list forever. Implied consent does expire after specific time frames as set out in CASL and needs to be converted into express consent. You should take care in sending holiday e-cards by taking a selective approach to your contact list to avoid an actual spamming approach of sending cards to every single email address you may have. The holidays, while filled with joy, are an expensive time of the year for most individuals and companies. The last thing anyone wants is a hefty penalty from the CRTC to dampen the holiday spirit. Got questions? Call us at (604) 669-1119. This post is for informational purposes only and does not constitute legal advice or an opinion on any issue. If you are interested in receiving additional details on the topic above or advice about specific circumstances, please contact MEP Business Counsel at 604-669-1119.