What is “commercial electronic message” (CEM) under CASL?
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Under CASL, a commercial electronic message (CEM) is any electronic message (email, SMS, or certain social media messages) that encourages participation in a commercial activity. The test: is the message's purpose, or one of its purposes, to promote a product, service, business, or investment opportunity? If yes, it's a CEM and you need CASL consent before you send it.
When a message has both commercial and non-commercial content, CASL uses a primary purpose test. Ask what a reasonable person would conclude the message's main goal is. A newsletter with genuine educational content and one product mention is probably not a CEM. A newsletter where the educational framing is clearly cover for a sales pitch probably is, regardless of what you call it. Context matters; labeling doesn't.
Some messages are explicitly exempt from CEM classification: quotes or estimates the recipient requested, warranty or safety information, and certain communications between parties with an existing business relationship. Getting the classification wrong can cost up to $10 million CAD per violation for businesses.
If you're unsure whether a specific message is a CEM, assume it is and get proper CASL consent before sending. It's much easier to have consent you didn't technically need than to defend a message you assumed wasn't a CEM.
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