OVERVIEW OF CASL
(CANADIAN FEDERAL ANTI-SPAM LAW)
In 2014, Canada’s federal anti-spam legislation (CASL) came into force.
In general, CASL creates an “opt-in” regime requiring express consent in many cases for marketers to send unsolicited commercial electronic messages (CEMs).
CASL also includes a number of types of implied consent to send CEMs and exemptions from the application of the consent requirement and also from the legislation altogether.
The three core requirements of CASL are consent (whether express or implied), sender identification information for consent requests and in CEMs and a CASL-compliant unsubscribe mechanism for recipients to unsubscribe from unwanted electronic marketing.
In addition, the onus is on senders of CEMs to document consent (or any category of implied consent or exemption being relied upon).
As such, it is important for electronic marketers to not only comply with the consent, sender identification and unsubscribe requirements of CASL, but to also have compliance measures in place to document consent and other key CASL requirements (e.g., unsubscribe requests and actions).
CASL CORPORATE COMPLIANCE PROGRAMS
The CRTC, which is one of three federal agencies responsible for the administration and enforcement of CASL, together with the Competition Bureau and federal Privacy Commissioner, has issued guidance on a number of occasions since the law came into force relating to compliance with the law. See, for example, Guidance on Corporate Compliance Programs.
A credible and effective CASL corporate compliance program can help reduce violations of CASL, which includes potential penalties of up to $10 million, reduce legal fees and the time associated with investigations and minimize reputational damage for brands.
An effective CASL corporate compliance program can also help businesses establish a due diligence defence in the event of a violation of CASL.
Some of the CRTC’s key recommendations for a credible and effective CASL corporate compliance program include:
1. Senior management should play an active role in compliance (e.g., a senior manager appointed as chief CASL compliance officer).
2. Smaller businesses should appoint a person responsible for CASL compliance.
3. Businesses should consider conducting risk assessments to determine which business activities are potentially at risk of violating CASL.
4. A written CASL corporate compliance program should be adopted. Key CRTC-recommended elements of a compliance program include internal procedures for compliance, compliance training, auditing and monitoring mechanisms, record keeping (particularly documenting consents), an internal reporting mechanism and discipline for non-compliance with the program.
Some of the documents that the CRTC recommends be maintained by companies and others engaged in electronic marketing to document CASL compliance include CEM policies and procedures, all unsubscribe requests and actions, all evidence of express consents obtained, CEM recipient consent logs, CEM scripts (for any consents collected orally) and relating to actioning unsubscribe requests by recipients.
CASL RESOURCES
For more information about CASL, see: CASL (Anti-spam Law), CASL Compliance Errors, CASL FAQs and CASL Compliance Checklists and Precedents.
For more information about the CRTC’s compliance guidance for CASL, see: here, here, here, here and here.
OUR CASL SERVICES
AND CASL COMPLIANCE CHECKLISTS
AND PRECEDENTS
We offer a full range of legal services to help companies, brands and advertising and communications agencies comply with CASL, including legal advice and opinions, checklists to comply with the core CASL requirements (consent, sender identification, unsubscribe mechanism and documenting consent) and reviewing draft CASL related materials and consent requests for compliance.
CASL Compliance Checklists and Precedents: For information about our CASL compliance related checklists, precedents and a template CASL corporate compliance program, see: CASL Compliance Checklists and Precedents.
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SERVICES AND CONTACT
We are a Toronto based Canadian competition and advertising law firm that helps clients in Toronto, Canada and the United States practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
Our Canadian advertising/marketing law services include advice in relation to anti-spam legislation (CASL), Competition Bureau complaints, the general misleading advertising provisions of the federal Competition Act, Internet, new media and social media advertising and marketing, promotional contests (sweepstakes) and sales and promotions. We also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
For more information about our services, see: services
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
