Email Guidelines
CASL Email Guidelines
Is the email commercial?
Is the email exempt from CASL?
Has the recipient supplied express consent?
Has the recipient supplied implied consent?
Does the transitional period for implied consents established before July 1, 2014 apply?
Is the required contact information included?
Is an unsubscribe mechanism included?
CASL only applies to an email that, as one of its purposes, encourages participation in a commercial activity. The commercial aspect can be secondary to the main purpose of the email. Before sending an email, consider whether it could be considered commercial or not. If an email is not commercial, CASL does not apply.
Examples of CASL's applicability to common UWinnipeg activities.
Also consider if the email's content – including any hyperlinks or logos – has, in any way, a commercial character. For example, does the email encourage the recipient to:
- Patronize specific retailers, service providers, or other organizations or sponsors
- Attend non-University events where there is a charge for admission
- Visit third-party websites that advertise goods or services for sale
- View newsletters, blogs, or social media pages that may promote commercial activities
It is important to review the entire CEM and watch for "mixed-purpose" messages. This is where the primary purpose of the message is not commercial but some commercial content is also included, such as an advertisement or link for a commercial product or service in an otherwise non-commercial message. This is now a "mixed-purpose" message and CASL may apply.
2. Is the email exempt from CASL?
Certain emails are exempt from CASL, even though they may have a commercial character. If an email is exempt from CASL, there are no consent or content requirements.
At UWinnipeg, exempt emails include emails sent:
- Between UWinnipeg employees which concern UWinnipeg activities
- From UWinnipeg employees to other businesses or third-party business partners that have an ongoing business relationship with UWinnipeg, if the email is relevant to the business, role, function or duties of the recipient
- To a recipient who is engaged in a commercial activity, and relate solely to the recipient’s commercial activities
- By a registered charity (such as the Foundation) and the primary purpose of the email is to raise funds for the charity
- Outside of Canada and the message conforms to the anti-spam laws of the foreign state
- To satisfy various legal obligations
- In response to a request, inquiry or complaint
- To a recipient with whom the sender has a personal or family relationship
- a personal relationship means the individuals involved have had direct, voluntary, two-way communications and it would be reasonable to conclude that they have a personal relationship taking into consideration relevant factors such as the sharing of interests, experiences, opinions and information, the frequency of communication, the length of time since the parties communicated or whether the parties have met in person
- a family relationship means the individuals involved are married, in a common-law partnership, or in any legal parent-child relationship and have had direct, voluntary, two-way communication
If the email satisfies any of the above conditions, CASL does not apply.
Other emails may be exempt from CASL's consent requirements, but the required contact information and unsubscribe mechanism must still be included.
At UWinnipeg, emails exempt from the consent requirements include those that:
- Provide a quote or estimate for the supply of a product or service if the quote or estimate was requested
- Facilitate, complete or confirm a previously agreed-upon commercial transaction, including providing products or product upgrades
- Provide warranty information, product recall information or safety or security information about a product, goods or a service that the recipient uses, has used or has purchased
- Deliver information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, is currently participating or is currently enrolled
- Provide factual information about:
- the ongoing use or purchase by the recipient of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship or
- the ongoing subscription, membership, account, loan or similar relationship of the recipient
In addition, the first email sent to an individual following a referral by another individual who has an existing business, non-business, family or personal relationship with the sender and the email discloses the full name of the individual who made the referral and that the email is being sent as a result of the referral is exempt from CASL's consent requirements.
3. Has the recipient supplied express consent?
It is prohibited to send a commercial email without the consent of the recipient. There are two types of consent under CASL: express and implied. Express consent is the "gold standard" and should be obtained whenever possible. Unlike implied consent, express consent does not expire.
Express consent, also known as "opt-in" consent, can be obtained in writing – including by electronic means – or orally. The individual must provide explicit, unbundled permission to receive commercial emails.
*It is prohibited to send an email to an individual asking for their express consent to receive commercial emails unless they have already provided implied consent. Use other methods such as paper or online sign-up forms.*
To obtain express consent, UWinnipeg must inform the individual of:
- The purpose, or purposes, for which consent is sought
- A statement stipulating the individual can withdraw their consent at any time
- The business name of the person seeking consent
- The mailing address of the person or business, together with one of
- A telephone number or
- An email address or web address of the person seeking consent
The individual must then perform one of the following actions:
- Check a box on a web form (the box must not be pre-checked)
- Click a link on an email or e-newsletter
- Fill out a consent form
- Send an email to a dedicated opt-in email account
- Provide verbal consent during a telephone call using a standardized “script” to demonstrate, if challenged, the script for a call seeking express consent
The easiest way to obtain express consent is at the time an individual signs up for a service, program, or activity. Express consent may also be obtained verbally, though it is recommended that a standardized script be used and a record of the consent created.
Regardless of methodology UWinnipeg must be able to prove, if challenged, that it met the consent requirement.
Privacy Requirement
If this is the first time that the individual has been asked to provide their personal information (name, contact information, email address, etc.) (FIPPA) also requires that UWinnipeg provide the individual a notice of collection statement detailing:
- The purpose for which the information is collected
- The legal authority for the collection; and
- The title, business address and telephone number of an officer or employee of the public body who can answer the individual's questions about the collection.
*More information and a sample notice of collection statement*
4. Has the recipient supplied implied consent?
Implied consent arises from existing business or non-business relationships and should be relied on only if express consent cannot be readily obtained. Implied consents expire after 6-24 months.
Existing business relationships arise from:
- The purchase, lease, or bartering of a product, goods, or service within the two-year period immediately before the day on which the commercial email was sent
- The acceptance by the recipient of a business, investment or gaming opportunity
- A written contract, if the contract is currently in existence or expired within two years
- An inquiry or application, within the six-month period immediately before the day on which the commercial email was sent, in respect of a product, goods, or service
Existing non-business relationships arise from:
- A donation or gift made by the recipient within the two-year period immediately before the day on which the commercial email was sent, where the sender is a registered charity
- Volunteer work performed by the recipient, or attendance at a meeting organized by the sender, within the two-year period immediately before the day on which the commercial email was sent, where the sender is a registered charity
- Membership by the recipient within the two-year period immediately before the day on which the commercial email was sent, where the sender is a club, association or voluntary organization
Implied consent may also apply if:
- The recipient conspicuously publishes their email address without stating that they do not wish to received unsolicited emails and the commercial email relates to the individual's role, functions, or duties in a business or official capacity
- The recipient discloses their electronic address without stating that they do not wish to receive unsolicited emails and the commercial email relates to the individual's role, functions, or duties in a business or official capacity
Most implied consents expire after 6-24 months. Therefore, every attempt should be made to convert implied consents to express consents during the 6-24 month time period.
5. Does the transitional period for implied consents established before July 1, 2014 apply?
CASL contains a transitional period beginning July 1, 2014 and expiring June 30, 2017. During this period, the limitation period for existing business and existing non-business relationships created before July 1, 2014 is removed. This means that, provided the business or non-business relationship was established before that date, and the relationship included the sending of commercial emails, the implied consent arising from the relationship may be relied on until June 30, 2017 to send further commercial emails. Use the transitional period to convert these implied consents to express consents.
6. Is the required contact information included?
The content of the commercial email must identify the sender. Specifically, it must include:
- The sender's name
- The sender's contact information
- A mailing address and any one of
- A telephone number
- An email address
- A website address
- A mailing address and any one of
If it is not practical to include this information in the body of the commercial email, you may supply a link to a website containing the required contact information.
7. Is an unsubscribe mechanism included?
The email must enable the recipient to readily unsubscribe by electronic means, at no cost to them, from receiving future commercial emails. This can be achieved by specifying an electronic address or a website to which the unsubscribe request can be sent.
For example, "If you do not wish to receive further emails from [UWinnipeg department], please reply with 'unsubscribe' to [Uwinnipeg department email address]."
Unsubscribe requests must be processed within 10 business days, and the address or website where the unsubscribe request can be sent must be valid for at least 60 days after the commercial email is sent.