What is “commercial electronic message” (CEM) under CASL?

Under Canada's Anti-Spam Legislation (CASL), a Commercial Electronic Message (CEM) is any electronic message-including email, SMS, and certain social media messages. That uencourages participation in a commercial activity. The key test is whether the message's purpose, or one of its purposes, is to promote a product, service, business, or investment opportunity. This definition is intentionally broad to capture not just obvious sales pitches but also more subtle promotional content that might otherwise slip through regulatory gaps.

The determination of whether a message qualifies as a CEM depends on the primary purpose test. If a message contains both commercial and non-commercial content, you must evaluate what a reasonable person would conclude is the message's primary purpose. A newsletter with genuine informational content might include product mentions, but if its primary purpose is education rather than promotion, it may not constitute a CEM. However, if promotional content dominates or the overall context suggests commercial intent, the message will be regulated under CASL regardless of how it's labeled.

Understanding the CEM definition is crucial because misclassifying a message can result in significant penalties-up to $10 million CAD for businesses per violation. Some messages are explicitly exempted from CEM classification, including quotes or estimates requested by the recipient, warranty or safety information, and certain business-to-business communications between parties with existing relationships. When in doubt, assume your message is a CEM and ensure proper consent is obtained before sending.