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June 30th, 2014

Disclaimer: This article is for informational purposes only. Nothing in this message or the resources contained herein should be considered legal advice, or take the place of seeking legal counsel.

On July 1, 2014 new Canadian Anti-spam Laws (“CASL”) will take effect. These laws are among the toughest in the world, and they will affect virtually every Canadian.

Breaches of CASL may subject individuals and businesses to fines of up to $1 million and $10 million, respectively. Under CASL, it is the responsibility of the sender to maintain records which prove that message recipients consented to being sent messages; failure to comply with an investigation into a breach of CASL may result in criminal penalties.

There have been many excellent resources created relating to CASL.

This article is intended to give you a brief overview of CASL, and point you to further information should you require it. Please note: If you are a registered charity or political party, some of the following information may not apply, or may apply differently to you.

Without further ado, our top tips on complying with CASL:

1) If you are a person in Canada with an email account, you should be aware of CASL

You need to pay attention to CASL if you or your business sends, causes to be sent or permits to be sent commercial electronic messages (“CEMs”) to a computer in Canada, or from a computer in Canada.

A CEM is a message which is intended, at least partially, to encourage participation in a commercial activity. CEM’s include but are not limited to: text messages, email messages, some social media communications, and automated phone messages.

2) If you go to networking events or get referrals, CASL pertains to you

Even if you only send emails after meeting someone at an event or getting a referral, you need to pay attention to CASL.

(1)  Networking: if someone gives you their business card, they may have implied their consent to communications which relate to their official or business capacity, they also may have implied consent to be added to a mailing list – remember, it’s your responsibility to prove consent if you are ever challenged.

(2)  Referrals: if someone refers you to someone they have a personal or business relationship with, you are allowed to send one unsolicited CEM and must state who referred you, and that you are sending the message as a result of that referral.

3) The CRTC and the Government of Canada have published information to help you

The two major non-legislative sources of information on CEMs under CASL are:

(1)  the CRTC which wrote the regulations on CEM formatting requirements, and

(2)  the Government of Canada’s FightSpam website.

The CRTC website provides a brief overview of the law, some tips on compliance practices, and an online information session on the law. The FightSpam website provides detailed information on the law, but little practical advice.

4) You probably already have consent to send these messages (sort of)

You may send CEMs if the recipient consents. There are many ways the recipient may consent to receiving messages, including through:

(1)  signing up for your communications,

(2)  the publishing of the recipient’s email address on a website,

(3)  an existing relationship, or

(4)  a referral from someone who has a relationship with that person.

The problem is that each of these may be limited in terms of the subject of messages you may send, and most of these methods of consent will expire after a certain time period.

5) CASL has standards for your CEMs

Generally, your CEMs must be formatted to CASL’s standards. The basics of what your message must include may be found on this infographic. The gist is that, except in established business-to-business relationships, every message must contain:

(1)  an obvious unsubscribe mechanism, and

(2)  the identification and the contact information of the sender and/or the person on behalf of whom the message is sent.

If another business sends messages on your behalf, it is prudent to ensure they are complying with CASL or you may be liable. More detailed information on these requirements may be found here.

6) Seek Express Consent (but don’t expect to get it)

Under CASL, express consent is the cure-all. If you have express consent, you are able to send CEMs to the consenting recipient until they revoke that consent. However, success rates in attaining express consent after signup have been tragically low. It is sensible, therefore, to seek express consent during each client contact.

Express consent may be passed on to business partners, even if they are yet-to-be-determined. This graphic describes the basic idea of how your partners may communicate with your contacts, but please note that CASL’s actual provisions are much more complex than this diagram suggests, and if you will be sharing express consent it may be advisable to seek legal advice.

7) Opt-in, not Opt-out

If you send a message to seek express consent, it must include everything that other CEMs include, an opt-in (not opt-out) mechanism as described here, and a clear indication that the purpose of the message is to seek express consent to continue sending the recipient CEMs.

Additional Information

  1. Sources of Law
    1. CRTC’s Electronic Commerce Protection Regulations: creates content and formatting requirements for CEMs under CASL
    2. Governor in Council’s Electronic Commerce Protection Regulations: defines various relationships and exceptions to CEM provisions under CASL
    3. The Act which brings CASL into force: section 6 is the basis to the CEM laws with related law throughout
  2. Practical advice on business processes under CASL
    1. Engine North’s excellent flowchart/blog post
    2. CRTC’s Guidelines to help businesses develop corporate compliance programs
  3. More information
    1. Government of Canada’s F.A.Q. and portal to CASL
    2. CRTC’s F.A.Q. and portal to CASL
    3. Information bulletins by the CRTC

Disclaimer: This article is for informational purposes only. Nothing in this message or the resources contained herein should be considered legal advice, or take the place of seeking legal counsel.

About the author:

Brandon Hastings is an articled student with Campbell, Froh, May and Rice LLP. He received his JD from UBC law in 2013, and graduated at the top of his BBA in Entrepreneurial Leadership class in 2010. He has acted as a trade delegate with junior team Canada, competed internationally in business case consulting competitions, and attended masters level world trade law classes at the National University of Singapore. Brandon currently sits as a finance committee member with the Immigration Services Society of BC, and a board member with the Kwantlen Polytechnic University alumni association.

Twitter: @BHastings175

http://ca.linkedin.com/in/BHastings175

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