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 is still a complex law with some outstanding uncertainties in key areas.
In providing CASL advice to clients since CASL came into force in 2014, and over the past several years, I regularly see some of the same compliance errors being repeatedly being made, including by otherwise sophisticated marketers.
It is also relatively uncommon for me to see companies have a CASL compliance program in place or established processes to comply with the consent, sender identification, unsubscribe and documenting consent requirements under CASL.
In this regard, one common CASL compliance error that I see is sharing contact lists with third parties without consent and without covering off the potential liability if the third party that receives a distriubiton list violates CASL.
In this regard, some electronic marketers want to share consents for electronic marketing with third parties. This may include related entities (i.e., affiliates) or unrelated third related marketers with which the party seeking consent has business relationships (e.g., affiliate marketing).
While obtaining and sharing consents with third parties is permitted under CASL, marketers need to be aware that there are specific rules that must be met for both gathering consents and sharing lists depending on who a list will be shared with (e.g., to expressly identify a third party with whom consent is being gathered on behalf, including the third parties contact information and other, unfortunately complex, requirements if the identity of a third party with whom a list will be shared is not known at the time consent is requested).
Marketers should also be aware that there is also potentially not only liability if they violate CASL as senders of unsolicited CEMs, but also if they assist a third party violate the legislation.
In this regard, CASL is broad enough for liability for not only the senders of unsolicited CEMs but also those that “aid, induce, procure or cause to be procured the doing of any act” that violates section 6 of CASL (section 9 of CASL).
Based on this “aiding and abetting” type provision, it is often prudent, even if CASL-compliant consents have been obtained for third parties, for marketers to ensure that they have agreements in place with third parties with whom they intend to share e-mails to minimize risk (i.e., list sharing agreements).
Such list sharing agreements may include, among other things, a covenant by the third party receiving the distribution list to comply with CASL and an indemnification provision in favour of the marketer sharing the list in the event the third party violates CASL. Of course, the strength of any such list provider agreements and contractual terms will depend on the ability of a third party receiving a distribution list to fulfill the indemnify and other obligations set out in the list sharing agreement.
For more information about CASL, see: Canadian Anti-Spam Law (CASL), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and CASL FAQs.
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CASL PRECEDENTS/FORMS
In addition to our legal services, we also offer lawyer prepared CASL precedents and checklists that identify key consent, disclosure and other requirements for electronic marketing to Canadians with checklists and precedents to comply with CASL.
Our precedents and checklists are an excellent starting point to mitigate risk and avoid common CASL-related issues, including relating to express consent requests (including on behalf of third parties), sender identification information for CEMs, compliant 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 and to order see: Canadian Anti-spam Law (CASL) Precedents/Forms.
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SERVICES AND CONTACT
We are a Toronto based Canadian competition law and advertising law firm who 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
