Electoral Politics and CASL

As Canada finds itself in the final weeks of a hard-fought federal election, there have been some commentators who have alleged that Canadian political parties are violating Canada’s Anti-Spam Legislation (see here: http://www.mediapost.com/publications/article/259461/effective-political-email-marketing-may-violate-ca.html and here: http://www.mediapost.com/publications/article/259461/effective-political-email-marketing-may-violate-ca.html). Given the centrality of politics to our system of government and constitutionalism, important clarifications are necessary.
First, CASL does not apply to political speech. CASL applies only to commercial messages. There are a host of messages to which CASL does not apply. Examples include opinion on politics, religion and sex. Such messages may be banned in polite society, but in the marketplace of ideas, they are unregulated.
Second, CASL does not apply to the solicitation of donations by political parties. Only where political parties are raising funds by selling tickets to a fund raising event or T-shirts or other political memorabilia would CASL come into play.
Third, because CASL does not apply to political messages, neither the requirements of identification of a physical address nor the requirement of an unsubscribe mechanism apply. Persons who are selling ideas –as opposed to goods or services – do not engage CASL at all.
So, if you receive an email from a political party telling you it’s the only political party that is upholding Canadian values by banning the Niqab in citizenship ceremonies, and it asks for a donation so it can keep up the good fight, that email is perfectly legal under CASL. It may be that failure to provide detailed contact information or an unsubscribe mechanism may be annoying to recipients – but their vehicle for relief is either to complain to the political party, check with Elections Canada to see if the message complies with the Elections Act, or to vote against that party on election day.
CASL was designed for and limited to commercial speech.

Posted in Administrative Law, Blog, Canada's Anti-Spam Legislation, CASL