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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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August 18, 2019

Canada’s federal anti-spam legislation (CASL) came into force more than five years ago. Since then, marketers and their advisors have been working to comply with what remains a complex and difficult law with a number of outstanding uncertainties in key areas.

In providing CASL advice to marketing clients since the law came into force in 2014, including consumer products firms and agencies, I regularly see some of the same compliance errors being made – even on occasion by sophisticated marketers.  As such, I thought I would write a short post discussing some of the most common CASL compliance errors that I regularly see:

Passive consent: In general, CASL both allows marketers to rely on express consent (e.g., an opt-in electronic form) or a number of categories of implied consent (e.g., an existing business relationship) to send electronic messages. I commonly see, however, marketing materials where there is an attempt to gather consent by “passive means”, such as by merely participating in a contest or other promotion.  Sometimes such passive consent language is just included in web page footers, contest rules or privacy policies.  In this regard, marketers need to be aware that if they can’t rely on a category of implied consent or CASL exception, then they need to obtain positive, express opt-in consent (e.g., via a paper or electronic form with the prescribed identification information set out).

Consent coupled with other terms: Another common compliance error I often see is an attempt to gather consent for electronic marketing bundled with other terms (e.g., combined with general terms of sale, a privacy policy or terms for a contest or other promotion).  In this respect, the CRTC takes the position that consent should be uncoupled (i.e., sought separately from requests for consent to general terms and conditions of sale or use).  As such, it is generally best practice to ensure that express consent is separate, express and includes the prescribed ID requirements for requesting consent.

Incomplete ID information for consent requests: CASL is highly prescriptive and sets out specific identification information that must be included in both consent requests and electronic messages themselves.  I commonly see initial drafts of client marketing materials that include some, but often not all of, the required identification information.  In addition, the information that must be included (e.g., in a consent request) can vary, according to, among other things, if consent is being requested on behalf of a single or multiple persons.  Other nuances can include the requirement to include the names of all persons on whose behalf consent is sought and the type of name of the person requesting consent, depending on which name they do business as (i.e., corporate name or DBA name).

Consent gathered for multiple entities: In general, it is possible to request consent for electronic marketing for three categories of persons: (i) the person requesting consent; (ii) an identified 3rd party (or multiple 3rd parties); or (iii) an unidentified 3rd party (or multiple unidentified 3rd parties).  I commonly see, however, requests to gather consents for a broad range of persons without complying with specific CASL requirements, such as identifying 3rd parties where their identities are known or including the required contact information depending on who consent is being requested for.  In addition, there are very specific and unfortunately highly complex rules under CASL where consent is being requested for as yet unidentified 3rd parties, which should be reviewed carefully.

Consents from list providers: Another common compliance error I see in my practice is using bulk e-mail lists from list providers.  In some cases, such lists are assembled by non-Canadian entities, where it is not clear whether, for example, express consent was obtained to use the e-mail addresses or whether such lists, if obtained from the web, complied with CASL’s specific rules for the online collection of e-mail addresses for B2B marketing.  In this regard, while marketers can certainly use e-mail addresses obtained from 3rd parties or list providers, they should satisfy themselves that the e-mail lists obtained comply with CASL’s consent requirements.  For example, if using e-mail lists obtained from the web for B2B marketing, marketers should ensure that not only were such e-mails conspicuously posted with no message against solicitation, but also that any marketing sent is likely to be relevant to the recipient’s business (see below for more information).

Bulk collection of online e-mail addresses (B2B marketing): Related to the above point, CASL does include a number of potentially helpful categories of implied consent.  For example, the legislation includes two B2B categories of implied consent, including one for the collection of e-mail addresses online.  However, the test for this category of implied consent (as with others under CASL) is very specific and requires, among other things, that any marketing sent to a person whose e-mail was obtained online is “relevant to [their] business, role, functions or duties in a business or official capacity.”

E-mails with incomplete ID information: Like consent requests, CASL sets out specific and very prescriptive information that must be included (or linked) in e-mails, texts or other electronic marketing.  In this respect, as with ID information for consent requests, it is prudent to use a checklist and/or carefully review CASL’s regulations to ensure that all prescribed information is included in electronic messages.

Tracking un-subscribes / scrubbing lists: While much of the compliance discussion for CASL tends to relate to its three core requirements – i.e., consent, identification and un-subscribe mechanism – back-end compliance is also crucial for electronic marketers.  In this respect, CASL requires, among other things, that people that request to be unsubscribed be removed from a list within 10 days.  It is also important for marketers to ensure that, unless they have refreshed consent, that existing customers be removed from marketing lists after two years of purchasing a product/service or six months after an inquiry (i.e., the existing business relationship category of implied consent is time-limited and, as such, lists must be regularly scrubbed on a rolling basis).

Sharing contact lists with 3rd parties: Many marketers want to share consents for electronic marketing with other parties, whether related entities such as affiliates or 3rd parties.  While this is certainly possible under CASL, marketers need to 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 a 3rd party with whom consent is being gathered on behalf, including the 3rd parties contact information and a number of other requirements if the identity of a 3rd 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 potentially not only liability if they violate CASL, but also if they assist a 3rd party violate the legislation based on an “aiding” provision in section 9 of CASL.  As such, it is often prudent for marketers that want to share electronic marketing lists to ensure that they have agreements in place with 3rd parties with whom they intend to share e-mails that includes, among other things, covenants by the 3rd party to comply with CASL and indemnification provisions in favour of the marketer sharing the list in the event CASL is violated by the 3rd party.

Follow-ups with additional marketing: Helpfully, there is an exception from the unsolicited CEM section of CASL (section 6) for replying to requests or inquiries.  However, this exception is narrow.  As such, I commonly see marketing where clients will want to not only reply to an inquiry, but to also engage in additional marketing.  This is potentially risky and the better route is often to restrict the follow up to the topic of a consumer inquiry or request (unless, of course, express consent has been obtained or there is a category of implied consent that can be relied on, such as an existing business relationship). Contests are a good example of this issue.  In this regard, while it is generally acceptable to follow up with, for example, contest entrants relating to a promotion itself, it is generally prudent to obtain express consent for any other (or later) unrelated marketing.

Friends and family promotions: Some marketers run “friends and family” promotions – for example, offering additional contest entries to entrants that share the details of the contest with friends or family.  Marketers should be aware, however, that while there is an exception to the unsolicited CEM section of CASL for messages sent to a person with whom they have a personal or family relationship, these terms are very specifically defined in the regulations.  For example, “family relationship” is limited to spouses, common-law partners and parent-child relationships.  “Personal relationship” is, unfortunately, defined in a multi-factor and case-by-case fashion, such that it is often impractical to rely on this exception for a broad “friends and family” type promotion.  In sum, marketers need to be aware that there is potential risk for themselves and their clients in running friends and family type promotions, if they cannot satisfy themselves that the specific definitions of “family relationship” and “personal relationship” under CASL can be met. To put it another way, marketers could, depending on the type of promotion, essentially be assisting participants in a promotion violate CASL by encouraging electronic marketing for the promotion to 3rdparties from whom consent has not been obtained and no exception applies.

For more information about the basic requirements of CASL, see: Canadian Anti-spam Law (CASL).

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

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