A colleague recently approached me for some CASL (Canadian Anti-Spam Legislation) insight, wanting to know more about the classification of market research emails in Canada and what factors should be considered when planning such a project. This may be helpful for those of you conducting market research, too.
First and foremost, there are no specific exemptions for survey or market research communications built into CASL. Sorry!
“Why is the government not exempting surveys and market research? Those doing surveys and market research are not affected by the legislation as long as they are not trying to sell something, so the electronic message is not considered to be a commercial message. The government is concerned that an explicit exemption for surveys and marketing research would easily be abused.”
Though there isn’t a general exemption for market research, the government does not consider true market research to be a commercial activity, and therefore it would not be subject to CASL requirements, with a few considerations:
- If the message or survey process includes any attempts to solicit or advertise to the recipients, it could be considered commercial and subject to additional CASL requirements. All commercial Electronic Messages (CEMs) are subject to CASL.
- If participation provides an opportunity to win a sweepstakes or similar prize as a reward for participation, then it could be considered commercial (gaming) and subject to additional CASL requirements.
- General incentivizing for participation remains a grey area; I haven’t yet seen a ruling or formal opinion from any regulatory bodies related to market research that better demonstrates interpretation of CASL with regard to non-financial incentives. If you provide incentive for Canadians to participate, the form of incentive could be the deciding factor and the safe approach would therefore be to assume you must be CASL compliant.
“Under the Act, a message is only a CEM if it would be reasonable to conclude that it has as its purpose or one of its purposes to encourage participation in a commercial activity. The mere fact that a message involves commercial activity, hyperlinks to a person’s website, or business related electronic addressing information does not make it a CEM under the Act if none of its purposes is to encourage the recipient in additional commercial activity. “
“Moreover, surveys, polling, newsletters, and messages soliciting charitable donations, political contributions, or other political activities that do not encourage participation in a commercial activity would not be included in the definition.”
If your market research does not perform double duty as commercial messaging, you should be able to operate safely without adhering to CASL requirements. Does your organization conduct market research in Canada? If so, has CASL been factored into your approach?
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