What is a CEM? An Introduction to Canada’s Anti-Spam Legislation.

Have you ever sent a cold email to someone?

If you’re like many businesses, you probably have at some point in time. It’s also possible that you might have overheard people saying that though they do lots of cold emailing there are a very specific set of rules that you need to follow. These rules have been put in place by Canada’s Anti-spam Legislation, or CASL as it is commonly referred to.

CASL is one of the strictest anti-spam laws in the world and works to combat spam and other electronic threats to Canadians. Have you ever noticed how every marketing email you receive always includes an “unsubscribe button”? That’s because of laws like CASL.

What is a CEM?

One of the key components and definitions within CASL is a CEM, also known as a Commercial Electronic Message. A CEM is a message sent by an electronic means, such as an email, instant message, or text to another electronic address with, as its purpose or as one of its purposes, to encourage participation in a “commercial activity”.

In practice, there are a few points to consider to decide whether or not the email you’re sending constitutes a CEM. To better understand, let’s look at an example.

Our good friend Michael has been appointed as the Head of Sales at his company which specializes in building customized training for organizations. To meet his quota for the next quarter, he needs to secure 100 new customers for the company. Michael wants to be successful in his role, so he is very motivated to reach this target and he wants to build his pipeline as quickly as possible.

As many of us would, Michael decides that the easiest way to reach his targeted audience is to design a tailored cold outreach campaign and reach out to as many individuals as possible that are responsible for purchasing training solutions. He figures that with some sleuthing on LinkedIn and Google, he will be able to find the contact info for hundreds of different leads and with a beautifully designed email campaign, he’ll meet his quota in the next two weeks.

Unfortunately for Michael, it is not that easy, and there’s a good chance that his outreach campaign will fall under CASL and other Canadian privacy laws.

To figure out if his campaign falls under CASL, he needs to determine whether or not the messages he sends meet the definition of a CEM. Indeed, CASL only applies to (1) a commercial electronic message (CEM) that is (2) sent to an electronic address. If both elements are present, then CASL applies.

Step 1: Do the messages have a commercial purpose?

First, it is important to understand that not all electronic messages are CEMs under CASL. Indeed, the commercial nature of the message is important to determine whether CASL applies.

To figure this out, Michael needs to consider the following criteria:

• Is he encouraging his recipients to participate in a commercial activity?

• Is the content promotional?

• Does it contain hyperlinks to his website?

• Is he leaving the contact information for the recipient in case they are interested?

If he answered yes to any of these questions, there is a good chance that his message would be considered a commercial message.

But now, let’s give another example of a non-commercial message. Let’s say Michael responds to an existing customer on specific training he has purchased. There would be information on the training, a logo, hyperlinks, contact information etc… But what matters here is the intent, (i.e., the purpose of the message). In this particular situation, Michael would not be promoting a product or service, he would be helping an existing customer, and this would not constitute a CEM. The same would go if the message contained a survey or market research request unless the message would encourage the recipient to engage in commercial activity.

Step 2: Is the commercial message sent to an electronic address?

CASL only applies if a commercial message is sent to an electronic address, which includes emails, SMS and messaging to mobile phones and devices, or other similar accounts such as Facebook or LinkedIn accounts.

CASL does not apply to telemarketing, including live voice and automated telemarketing calls to telephone numbers. That said, marketing telecommunications are regulated by another regulation: the Unsolicited Telecommunications Rules. Therefore, if Michael decided to use automated telemarketing calls, CASL would not apply, but there would be other rules to make sure he understands.

In summary:

• CASL applies to the sending of CEMs, but only if your messages are sent to electronic addresses and if they have a promotional character;

• If you are a registered charity, you may be exempt from complying with CASL, as long as your CEMs primarily intend to raise funds.

Since Michael is reaching out via email to get sales, it is certain that this campaign will fall under CASL, and need to meet all the rules of CASL including things like consent, unsubscribe mechanisms etc.

Check out our next article where we explore how businesses like Michael’s can do their sales while still complying with CASL.