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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After a last minute flurry of inquiries and companies and individuals finalizing preparations to comply, Canada’s new federal anti-spam legislation will at long last (or as dreaded) come into force on July 1st. So, for companies and individuals that market electronically and haven’t prepared by Tuesday, it will be “pens down” so to speak or risk the rather draconian potential penalties under the new law.
I know you’ve all heard a lot about that so I won’t dwell on it here – for some of the key requirements of the new law see: here. As such, rather than summarize the main requirements of this complex and rather cumbersome new law, I thought I’d highlight a few of what I see as likely major implications.
These include:
Content marketing & blogs: It seems to me that the new law will mean a renewed value for paper (i.e., that stuff from trees), direct marketing, content marketing rich blogs and other similar online and other platforms (including B2B social media platforms).
More direct marketing: The new law will likely mean a shifted focus, at least until marketing lists are rebuilt around express consent, to direct and personal engagement for marketing and branding purposes. For example, person-to-person events, direct traditional communications, “picking up the phone” once and a while and engaging with existing business and non-business contacts, personal contacts, etc. Of course, the new law includes specific and technical definitions of existing “business relationships”, “non-business relationships”, “personal relationships”, etc., so a key part of CASL compliance going forward is to consider, where there is no express consent, whether a category of implied consent applies for any electronic communications in these areas.
Enhanced need to scrutinize electronic marketing: Prior to the coming into force of CASL, marketers already had to contend with privacy laws (including informed consent, the protection of personal information and privacy policies) and advertising laws (e.g., the Competition Act’s previous and now, following CASL, enhanced misleading advertising provisions relating to electronic marketing). Now, unfortunately, marketers will need to stop and pause to consider, in addition to complying with Canadian privacy and competition (advertising) laws, whether their lists are CASL compliant and, in addition to consents, whether they have also complied with the “form”, unsubscribe and record-keeping obligations under CASL.
Electronic marketing to Canadians?: Related to the above point is the now necessary CASL threshold question: “Does your marketing campaign involve electronic commercial communications to Canadians?” In other words, CASL also applies to inbound electronic marketing to Canadians. If so, you need to pause and consider whether your marketing is compliant with the key aspects of CASL (or, for example, you can rely on any exemptions from the new law or there are any categories of “implied consent” that may apply to you).
Gathering express consents during the 3-year transition period: CASL fortunately has a 3-year partial transition period for existing business or non-business relationships, regardless of when formed (so long as prior to the coming into force date) where commercial electronic communications were sent. This will be key to marketers that want to convert these two categories of implied consent to express consents.
Compliance: Part of the introduction of the new law involves a number of new compliance related considerations. These include the recently issued CRTC Compliance Guidelines and considering whether and the extent to which to incorporate CASL into existing compliance programs (particularly given the fact that the new law includes a due diligence defense). Perhaps the key compliance obligation for electronic marketers going forward under CASL is to be able to document CASL compliant consents if necessary (i.e., the onus is now on electronic marketers to be able to document consent).
Agents, agencies & employees: Another important high-level consideration the new CASL anti-spam law has raised, given both its potentially significant liability and various vicarious liability provisions, is the extent to which companies and individuals wish to consider protections for violations for the new law by employees, directors, officers, agents and agencies. In other words, since the new law includes a number of vicarious liability provisions, it may well prove to be prudent to consider whether those marketing or advertising electronically on your behalf are (a) CASL compliant and (b) whether you should seek reps/warranties and/or indemnities in the event they are not. For employees/marketing personnel, companies may consider incorporating CASL compliance into existing compliance programs, along with acknowledgments and penalties for non-compliance.
B2B marketing: Given that the new CASL anti-spam law includes some fairly promising B2B categories of implied consent, it may be that some marketers rely increasingly on their business contacts and networks (e.g., business marketing networks) for marketing and lead generation. Of course, the several B2B categories of implied consent are quite specific and should be carefully reviewed.
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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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SERVICES AND CONTACT
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.
For more information about my services, see: services
To contact me about a potential legal matter, see: contact
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