Anti-Spam Laws

In July 2014, Canada’s Anti-Spam Legislation (CASL), which is considered by many to be among the most aggressive anti-spam email laws in the world, went into full effect. It provides a very strict definition of “implied consent” to determine whether or not it is legal to email a consumer who has not specifically requested it. According to AWeber director of email deliverability, Mohammed Ahmed, consent can be implied if there is an Existing Business Relationship (EBR), which can be established if one or more of the following conditions is satisfied:

  • The recipient made a purchase, accepted a business opportunity or bartered with the sender in the past 24 months.
  • The recipient was party to a written contract with the sender in the past 24 months.
  • The recipient made an inquiry or application regarding a purchase, business opportunity or barter within the past six months.

Consent can also be implied if there is an existing non-business relationship as defined by a gift or donation made and the sender is a registered charity, political party organization or political candidate. The Canadian law imposes a stricter standard than the American law on what constitutes an existing business relationship.

New rules about installing computer programs came into force in January of 2015. It is now illegal to install programs, such as malware, on someone’s computing device (e.g., laptop, smartphone, desktop, gaming console or other connected device) without expressed consent of the device owner or an authorized user. Malware is short for malicious software and is a broad term that encompasses computer viruses, worms, Trojan horses, spyware, adware and others. Malware is not email-related spam, it infects your computer and allows hackers a chance to gain access to your computer and collect sensitive personal information.

Most U.S. states have enacted laws that pertain, directly or indirectly, to commercial email. All of these state laws are junior to CAN-SPAM in case of a conflict between the state and the federal laws, the federal CAN-SPAM law wins out. Most of the relevant state laws can be classed under one of the following headlines:

  • Commercial emails and spam
  • Telemarketing and Anti-Solicitation
  • Anti-Solicitation Related to Texts
  • Unlawful Trade Practices
  • Pornography
  • Computer-related crime

The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003 was signed into law by President George W. Bush and the bill was supposed to put an end to spam. It is now sometimes referred to by critics as the “You-Can-Spam” Act since the bill failed to prohibit many types of email spam and preempts some states laws that would otherwise have provided victims with practical means of redress.

Over the years, the commission has adopted new rules and regulations in the implementation of the CAN-SPAM Act. They have buckled down and the compliance is far more stringent when compared to the original 2003 order. Now, emailers must offer “opt out” or “unsubscribe” options, must have a legitimate mailing address displayed, not use fraudulent transmission data or misleading sender or subject lines. While still not as strict as Canada’s CASL, anyone engaged in the business of email marketing in either country would be wise to consult with a SPAM-law attorney to discuss their business practices in advance.