CASL – Bah Humbug to Holiday Greetings

We all receive – and many of us send – electronic holiday greetings this time of year. They can range from a simple email to animated cards to elaborate videos.

Next December the new anti-spam law (aka CASL) will be in force. Depending on how we send holiday greetings, what is in them, and who we send them to, CASL will act like the Grinch to classify some of them as spam, and make the sender subject to a massive fine or other remedies.

Figuring out whether a Christmas card is spam, like any other electronic message, will not be easy. That is going to be one of the most frustrating and burdensome parts of the legislation.

If one of the purposes of the greeting is “to encourage participation in a commercial activity”, then it is spam. The boundaries of that are not clear, but it is clear that it doesn’t take much to cross it. I suspect many holiday greetings from law firms or business would be considered somewhat promotional and thus be considered spam.

So the first challenge will be to design messages that are not commercial. While most corporate cards are primarily meant to offer genuine good thoughts, there is a promotional aspect to them as well. Would, for example, our Harrison Pensa card below that links to a web page be considered commercial?

If it might be of a commercial character, then you have to look at every single person you send it to determine if they fit within one of the many exceptions. My spam isn’t necessarily your spam. The family and personal relationship exceptions may surprise many in the narrowness and complexity of application. The implied consent exceptions are numerous but technical.

CASL will push many corporate holiday greetings into centrally managed databases and out of the hands of individual lawyers or employees. So basically, one has to engage a lawyer to determine what your Christmas greeting can say, and who you can send it to. Bah Humbug.


  1. David Collier-Brown

    At the technical level, my spam-filtering service says “not spam, let it through”.

    That doesn’t mean that if you send one to the Grinch, he won’t try to get you charged, but doesn’t mean he’ll necessarily succeed.

  2. But, David C-B, is your spam-filtering service CASL-compliant?

    CASL provides for administrative monetary penalties, so an alleged spammer, even one who thought he/she/it was simply passing on compliments of the season, could find him/her/itself facing huge fines with no court process between the whim of the administrator and the alleged spammer. One can challenge the penalty in court, but it hangs over one’s head in the meantime.

    One presumes that a lot of these questions of applications at the margin will work themselves out fairly soon, but who really wants to be a test case, especially in a non-commercial setting like the holiday greetings one? Is there any latitude for interpretation bulletins under CASL?

  3. There is some commentary on CASL from the CRTC to try to help interpret, and we expect more. They are helpful for some issues, but some of the explanation doesn’t seem to add much. And some interpret it more narrowly than the statute might.

  4. At least Rob Ford’s holiday greetings will not be considered as spam, because the political organisations cleverly exempted themselves from the regulations.

    Read more about this here