CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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I’ve been seeing an increasing flutter of updates and newsletters recently discussing the status of Canada’s new (though still unclear when) anti-spam legislation (“CASL”). So I thought I would have a poke around the web, see what Industry Canada, the CRTC, the Competition Bureau and Privacy Commissioner’s office have been up to lately and post a few thoughts on the progress of the new law that is inching along, some recent developments and practical steps that can be taken before the law is in force.
The bottom line at the moment appears that CASL will likely not be in force until mid- to late-2013, following the publication of new draft Industry Canada Regulations for comment (possibly this fall) and until some of the key operational details, such as the CRTC’s Spam Reporting Centre, are ironed out.
Overview
In December, 2010 CASL received Royal Assent. When it is in force, it will be one of the strictest anti-spam regimes in the world. The new anti-spam legislation will impact companies and individuals that use electronic marketing, including through e-mail, social media and text messaging, and will, among other things, prohibit sending commercial electronic messages (“CEMs”) without the recipient’s express or implied consent (or unless the sender has the benefit of one of the legislative exceptions).
The new legislation will also expand the Competition Bureau’s jurisdiction to review certain types of electronic marketing and advertising, impose restrictions on the electronic collection of e-mail addresses (e-mail address harvesting) and prohibit the installation of computer programs on other person’s computers without consent.
Not surprisingly, the features of the new law that are attracting the most attention from businesses are those relating to the detailed and rather nit-picky requirements for the sending of CEMs. These include an express consent requirement to send CEMs (unless consent can be implied or an exception applies), form requirements for CEMs and consent requests, an unsubscribe requirement and record-keeping obligations. Somewhat annoyingly for businesses already coping with many other regulatory obligations, the new law will also carry with it significant potential penalties (up to $1 million for individuals and $10 million for companies).
With respect to CEMs, the CASL prohibits the sending of CEMs without the recipient’s express or implied consent. “CEMs” are broadly defined as any electronic message that encourages participation in a commercial activity regardless of an expectation of profit (and include text, sound, voice or image messages).
CEMs must also be in a prescribed form that, among other things, identify the sender (or person if different, on whose behalf a message is sent); mailing address and a choice of other sender contact information; and an unsubscribe mechanism that can be “readily performed”. For the specific requirements for CEMs see: here.
Consent requests can be made orally or in writing (including, it seems, according to the CRTC’s backgrounder issued with the final CRTC Regulations, through electronic forms) and must include certain information, including the identity and contact information of the person or business seeking consent, the purpose for consent (e.g., to receive newsletters, etc.) and that the recipient can withdraw consent. For the specific requirements for express consent requests see: here.
As for unsubscribe mechanisms, they must allow recipients to indicate that they no longer want to receive CEMs using the same message (or, if impractical, other electronic means that will achieve the same result); and state an electronic address (or web link) to unsubscribe. Electronic addresses (or webpages) for unsubscribing must also be valid for a minimum of 60 days after messages are sent and recipients who unsubscribe must be unsubscribed without delay (and in any event no later than 10 business days after asking to be unsubscribed).
A Few Recent CASL Developments
Some recent CASL-related developments over the past year or so include:
Anti-spam Website. In the Summer of 2011 the Federal Government launched a new anti-spam legislation website (see: Canada’s Anti-spam Legislation and Web site on Canada’s Anti-spam Law Launched). While rather bare bones when it was launched, the site provides a good (if slightly basic) overview of the new law, the texts of the legislation and regulations, FAQs, spam definitions and related links and resources. The Government’s site is worth checking in on periodically though, as new information and updates are posted from time-to-time.
CRTC Regulations. In March, 2012, final CRTC Regulations (Electronic Commerce Protection Regulations), which set out the requirements to request consent, form requirements for CEMs and unsubscribe mechanisms, were finalized and published (see: CRTC Publishes Final Anti-spam Act Regulations and Electronic Commerce Protection Regulations). The final CRTC Regulations are essential for businesses and individuals that rely on electronic marketing to review, given that they contain the core consent, form and unsubscribe requirements for CEMs.
The CRTC’s backgrounder issued with the new Regulations also provides a rather useful overview of the new Regulations, including some indications as to how the CRTC intends to interpret the new Regulations (see: here) (although no formal CRTC guidelines have as yet been issued).
Little Black Book of Scams. Also in March 2012, the Competition Bureau published the Little Black Book of Scams, which includes discussions of spam-related issues under the Bureau’s jurisdiction.
Fight Spam Quiz. In April, the Federal Government launched a Fight Spam Quiz to assist individuals and organizations to prepare for the new law and a spam glossary.
Industry Canada Regulations. Proposed Industry Canada Regulations, which are to clarify the exemptions under the CASL, were first published for comments in July, 2011. Given significant industry push back, however, these Regulations have not yet been finalized. Revised draft Regulations are now anticipated to be published for a further 30 day comment period sometime this fall.
CRTC Guidelines. No guidelines have yet been issued by the CRTC, including no further clarification of key issues such as how express consent may be obtained. As such, the Federal Government’s CASL website (see above) remains one of the best current resources as to the status and progress of the new law.
Spam Reporting Centre. The CRTC is launching a Spam Reporting Centre, where consumers, businesses and other organizations will be able to report CEMs that are (i) either sent without consent or (ii) with false or misleading content (see: here).
The information reported to the Spam Reporting Centre, to be hosted by the CRTC, is intended to be used by the three responsible enforcement agencies (the CRTC, Competition Bureau and Privacy Commissioner’s office) for enforcement of the new law. A RFP for a third party operator was cancelled earlier this year after no compliant bids were received.
New Competition Bureau and Privacy Commissioner Pages. The Competition Bureau and Federal Privacy Commissioner’s office have each launched new overview pages for CASL (see: Canada’s Anti-spam Law and Privacy Commissioner – Spam).
CRTC reports. Several recent CRTC reports discuss the CRTC’s role enforcing the CASL (see for example: Quarterly Financial Report, CRTC Three-Year Plan 2012-2015 and Report on Plans and Priorities 2012-13).
Coming into force of the CASL. With respect to the likely coming into force of the CASL, it is now looking as though revised Industry Canada Regulations will be issued sometime this fall, with the CASL coming into force in mid- to late-2013. In this regard, in remarks made earlier this year, Canada’s Minister of Industry indicated that CASL is expected “to take effect next year.”
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Tips For Complying With
CASL (Canadian Anti-Spam Law)
Canada’s federal anti-spam legislation (CASL) came into force in 2014. Since then, electronic marketers and their advisors have been working to comply with what remains a complex law with outstanding uncertainties in some key areas. Having said that, many of the core requirements of CASL are not overly difficult to comply with (though continue to be misunderstood in many cases).
The following are some key legal tips for complying with CASL:
Express Consent. If you cannot rely on any category of implied consent (e.g., an existing business relationship within two years of a purchase) or a CASL exemption, ensure that you have collected and documented express consent from recipients. Express consent requests must include all of the information set out in CASL and its regulations otherwise the consent will not be valid. Failure to correctly collect consent is the most common CASL compliance error we see and a key basis for CRTC enforcement. For more information, see: Anti-Spam Law (CASL), Anti-Spam Law (CASL) FAQs and Canadian Anti-Spam (CASL) Precedents.
Implied Consent. If you are relying on one or more categories of implied consent to send commercial electronic messages (CEMs) (e.g., an existing business relationship within two years of a purchase or six months of a product inquiry) ensure that all of the requirements of the particular type of implied consent are met. Remember that there is not a single blanket type of implied consent under CASL; rather, there are many different types of implied consent each with their own specific requirements. Also, as with express consent, CEMs that rely on implied consent must still include the prescribed sender identification information and unsubscribe mechanism. For more information, see: Anti-Spam Law (CASL), Anti-Spam Law (CASL) FAQs and Canadian Anti-Spam (CASL) Precedents.
Consent For Third Parties To Send CEMs. Under CASL, consent to send CEMs can be requested for a sender themselves, identified third parties (or multiple identified third parties) or unidentified third parties (i.e., entities whose identities are not yet known when consent is requested). Importantly, however, each type of consent request has specific requirements for the request and, in the case of consent requests on behalf of unidentified third parties, somewhat complex additional requirements. The failure of marketers to correctly request consent for third parties (e.g., partners, affiliates, co-sponsors in promotions, etc.) is another CASL-related error that we regularly see. For more information, see: Anti-Spam Law (CASL) FAQs and Canadian Anti-Spam (CASL) Precedents.
CASL Exemptions. Similar to implied consent, there is no single exemption from CASL but many types of exemptions. If you are relying on a particular exemption (e.g., the “business-to-business” exemption) it is important to ensure that all of the requirements of the exemption are met. Importantly, there is little or no case law interpreting many CASL exemptions. This means that there there may be more risk when relying on an exemption than express consent. Express consent is the strongest type of consent under CASL, considering that it does not expire unless a recipient unsubscribes.
Passive Consents. Remember that under CASL express consent or a category of implied consent is generally required to send CEMs unless a CASL exemption applies. As such, passive types of consents (e.g., language in general terms and conditions) will likely not be CASL compliant unless a sender does not need express consent (i.e., can rely on a category of implied consent or a CASL exemption).
Sharing Lists With Third Parties. Consider the potential risks of sharing e-mail or other electronic marketing lists with third parties. While this is certainly possible under CASL, marketers should be aware that there are specific requirements that must be met depending on who a list will be shared with (e.g., to expressly identify third parties with whom consent is being gathered on behalf of, including their contact information and other requirements for unidentified third parties). Marketers should also be aware that there is also potentially not only risk if they themselves violate CASL (e.g., send CEMs without consent), but also if they assist third parties that violate CASL. As such, it is often prudent for marketers that want to share electronic marketing lists with third parties to ensure that they have list sharing agreements in place with parties with whom they share e-mails. For more information, see: Anti-Spam Law (CASL) FAQs, Anti-Spam (CASL) Compliance Errors and Canadian Anti-Spam (CASL) Precedents. See also: Influencer, Co-Sponsor and List Sharing Agreements.
Sender Identification Information. Ensure that all CEMs include the prescribed sender identification information required by CASL unless an exemption applies. For more information, see: Anti-Spam Law (CASL) and Anti-Spam Law (CASL) FAQs.
Unsubscribe Mechanism. Ensure that all CEMs include a CASL-compliant unsubscribe mechanism. For more information, see: Anti-Spam Law (CASL) and Anti-Spam Law (CASL) FAQs.
Document Consent. Under CASL, the onus is on senders of CEMs to document consent. As such, it is important to document the type of consent (express or implied) or exemption being relied upon, evidence of consent (e.g., subscription logs, forms, dates and names/e-mail addresses), divide lists according to the type of consent or exemption being relied upon and to scrub lists after recipients have unsubscribed or the relevant time period for a category of implied consent has expired (e.g., two years after a purchase). Failure to adequately document consent is another CASL-related compliance error that we regularly see, including not documenting consent at all, not segregating distribution lists and inadequately documenting consents or types of implied consent. For more information, see: Anti-Spam Law (CASL), Anti-Spam Law (CASL) Compliance and Canadian Anti-Spam (CASL) Precedents.
CASL Compliance Program. Consider adopting a CASL compliance program, particularly if electronic marketing is a core aspect of your marketing strategy. The CRTC has issued guidance on CASL compliance programs including key recommended elements. For more information, see: Anti-Spam (CASL) Compliance and Canadian Anti-Spam (CASL) Precedents.
CASL and Specific Types of Promotions. Care should be taken in relation to specific types of promotions under CASL. Just one of many examples is friends and family type promotions (e.g., contests where entrants can gain more entries by sharing with or tagging a friend or family member). While there is an exception to the unsolicited CEMs section of CASL (section 6) for messages sent to a person with whom the sender has a personal or family relationship, these terms are narrowly defined. For example, “family relationship” is limited to spouses, common-law partners and parent-child relationships. “Personal relationship” is defined in a multi-factor and case-by-case fashion such that it is often impractical to rely on this exception for any broad “friends and family” type promotion. Marketers should also be aware that there is potential risk for both themselves and their clients in running friends and family type promotions if they cannot meet the specific definitions of “family relationship” and/or “personal relationship” under CASL for a promotion. For more information, see: Anti-Spam (CASL) Compliance Errors and Running a Friends-and-Family Promotion in Canada? Cruel, Cryptic CASL Strikes Again.
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I am a Toronto competition/antitrust lawyer and advertising/marketing lawyer who helps clients in Toronto, Canada and the US 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.
My 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. I also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
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