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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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June 27, 2014

With Canada’s new anti-spam law (CASL) coming into force right around the corner (next week on July 1st) Canadian and international businesses that market to Canadians are finalizing initial CASL compliance preparations (including a flurry of consent request e-mails – which will not be permitted to request consent post-July 1st, unless they fall within the scope of the transition provision of CASL – i.e., are sent to existing business or non-business contacts as defined).

Given the significant marketing impacts of the new law and remaining uncertainties about just how the CRTC and other enforcement agencies will approach it, this Economic Club of Canada speech yesterday by the CRTC’s chief Jean-Pierre Blais caught my eye, as it did a number of Canadian journalists covering the growing number of CASL developments: Chairman Jean-Pierre Blais speech on how the CRTC is improving the security and safety of Canadians given at the Economic Club of Canada.

A few key CASL related points that caught my eye included:

Some fairly onerous sounding spyware, malware and phishing stats: 32% of computers infected with malware in 2012; a 600% increase in websites hosting malware from the prior year; a statistic that cybercrime costs the global economy about USD $400 billion a year (estimated impact on Canada’s economy being USD $3.2 billion).

Disappointing e-commerce figures for Canada: According to the CRTC’s chief, Canada ranks as 2nd in Internet penetration among G7 countries but Canadians, apparently, are stingy online spenders.  According to the CRTC, only about 3.4% of total spending in Canada is e-commerce related compared to, for example, 23% in the UK – wow the Brits really like the web – go Brits!.  Come on Canadians!

CRTC enforcement selection: Perhaps of most interest to Canadian companies and companies (and agencies) that market to Canadians is the questions of how much enforcement will there be and who will most likely be targeted? According to the CRTC’s chief, the CRTC will be “going after the most egregious violators: the high-volume spammers, the malicious URLs and botnets located in Canada”.

Other aspects of CASL: It should not be forgotten that CASL will apply to more than express consents, identification and unsubscribe requirements for commercial electronic marketing. In this respect, the CRTC chief also discussed the fact that the new law also includes changes to the Competition Act (e.g., prohibiting certain additional online or e-mail related false or misleading claims – e.g., in headers, URLs, the body of electronic communications, etc.) and will also have privacy law related implications, including a prohibition on online address harvesting without permission.

Reminder that CASL applies to many electronic platforms: Including text messaging, message on social networks and other forms of electronic communications. In this respect, CASL is generally technologically neutral and some key areas, such as the definition of “electronic address”, include catch-all or residual categories which potentially means the new law is broader than it may appear at first blush and will doubtless mean that it will take some years to confirm many key aspects of its application.

SPAM reporting: After July 1st, Canadians may begin reporting spam and other electronic threats to the Spam Reporting Centre, which, according to the CRTC chief, will “serve as a clearing house for complaints that will be assigned to the CRTC” or the other two CRTC enforcement agencies (i.e., Canada’s federal Competition Bureau or Privacy Commissioner).

Enforcement: “The CRTC has a team of highly-qualified people ready to start enforcing Canada’s anti-spam legislation. We have former RCMP officers, major criminal investigators and sophisticated computer forensics experts who will be leading these efforts”. Need another reason to comply?  Sounds a little like Eliot Ness v. spam …

Compliance: “If you abide by the law you have nothing to fear. Good corporate citizens will be in good standing” says the CRTC’s chief. If you’re interested in more detailed CASL compliance guidance, see the CRTC’s recently issued CASL Compliance Guidelines: here.

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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 Law (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 Law (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 Law (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 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 Law (CASL) Compliance Errors and Canadian Anti-Spam Law (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 Law (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 Law (CASL) Compliance and Canadian Anti-Spam Law (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 Law (CASL) Compliance Errors and Running a Friends-and-Family Promotion in Canada? Cruel, Cryptic CASL Strikes Again.

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We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.

Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.

To contact us about a potential legal matter, see: contact

For more information about our firm, visit our website: Competitionlawyer.ca

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    buy-contest-form Templates/precedents and checklists to run promotional contests in Canada

    buy-contest-form Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)

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