So who is the king of the CASL, and who is the dirty rascal? Sorry, I couldn’t resist a bit of fun around this significantly less fun topic. The Canadian Anti-Spam Legislation (CASL) is a law that regulates the sending of electronic messages for a commercial purpose.
Seeing as our world runs on electronic messages it is important to know how to stay on side with the law. Let’s cover the high points here but don’t think this article is the full suite of requirements, think of it as an appetizer and head to REALTORLink for the full meal deal.
Commercial Electronic Messages (CEM)
In the broadest sense of the phrase, CASL considers a CEM to be any type of electronic message for a commercial purpose. Of course, you assume email when you think of spam, but before you ask the question, yes text messages, social direct messages, app-based messages, chat messaging, and every other thing that just popped into your head is captured by the CEM definition if it contains a commercial message in text, video, image or combination. For example, anything a REALTOR® might send with a call to action, property information, open house invites, sales statistics, etc. are all included.
If you want to get creative and send a recorded voice message or fax, those are ok but consider everything else included. For my younger readers, don’t bother Googling “Fax” to find out what it is because you won’t need it for your business.
Don’t panic, you can send your spouse a text about an investment property, or send your mom a link to housing stats without the CASL police kicking down the door in a raid. CASL does allow for certain CEMs to be sent by exception which include those you have a personal or familial relationship with, if you are asking about a product or service, or even if you are responding to a complaint or inquiry from a consumer.
Additionally, if you are communicating with clients in a representation agreement between members of your brokerage, or between brokerages involved in a transaction for example those are fine as well but pretty much every other CEM would fall under the legislation.
Consent for CASL can be implied in certain situations but generally, senders are required to gain express consent. Implied consent for example would apply where you are a member of a:
Your communications with these entities are considered as having implied consent because of your continued association with them, and for up to three years after ending that relationship. The same would apply if the consumer gave you their email address, expecting you to email them something they specifically requested.
Additionally, if an individual was selling a bike and put up a poster on a community bulletin board that said to contact them by email if interested, that would also be implied consent for the bike inquiry but not to subscribe to your newsletter. All other CEMs would require the express consent of the party on the receiving end, which essentially means they are pointedly asked for their consent to receive communications for the specific defined reason and have responded yes. This can be obtained electronically, in writing, or verbally, but proof of consent should be maintained.
Now you know what can and cannot be sent, to whom it can be sent, and what consents are required so let’s wrap it with some final tidbits. Every CEM that is sent to a consumer must include:
As mentioned CEMs can take many forms so if the message is too short to provide all that information such as a private tweet or SMS message it is acceptable to use a link in the CEM that would connect the recipient to the required information to be clearly indicated. Additionally, after you have jumped through all of the hoops to get the message to the recipient, CASL mandates that the consent granted can be revoked by the recipient, so this requires an unsubscribe mechanism to be included in the message as well. Either a clear button or link to unsubscribe or something less techy like a line of clearly visible text such as “reply with the word ‘unsubscribe’ to this message if you no longer want this communication” which the sender would subsequently hasten to follow up on to end communications immediately.
I warned you at the beginning that this wasn’t going to be edge-of-your-seat type stuff, but it is an exceedingly important area of compliance. CASL allows for fines of up to $10M per violation of the legislation and permits any person to sue if they have been sent a CEM outside of the rules. That should be enough motivation to take the precautions necessary to ensure any commercial messages you send comply.
For my broker readers, I would strongly recommend that you ensure your office policies cover this topic as well as an introduction to the topic for your new members when they join the brokerage. Although the liability under CASL is generally considered to be attributed to the sender, you don’t have to have done anything wrong for someone to claim that you are the dirty rascal and then have to defend the brokerage’s due diligence.
Provincial Practice Advisor
Bryan has many years of experience in the real estate industry including over 10 years as a former broker in the Edmonton Region.
Email: firstname.lastname@example.orgPhone: 403-209-3619