April 26, 2022
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 some outstanding uncertainties in key areas.
came into force in 2014. Since then, electronic marketers and their advisors have been working to comply with what remains a complex law with uncertainties in a number of key areas.
In providing CASL related legal 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 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 CASL’s consent, sender identification, unsubscribe and documenting consent requirements.
One of the most common CASL compliance errors that I see is a request for consent for unidentified third parties without meeting the specific rules under CASL.
Some examples include an express consent request that includes a request for consent for “marketing affiliates”, “marketing partners” or “partners” (or similar language attempting to gather blanket type consents for any and all entities the person requesting consent may share electronic addresses in the future but who are not yet known).
Under CASL, it is possible to request consent to send CEMs for three categories of persons: (i) a sender themselves on their own behalf; (ii) an identified third party (or multiple identified third parties); or (iii) an unidentified third party (or multiple unidentified third parties) who are as yet unknown when the express consent request is made (e.g., future third party marketing partners).
While the first two types of express consent requests above are generally fairly straightforward, there are very specific and unfortunately rather complex rules under CASL where consent is being requested for third parties whose identities are not yet known when consent is being requested (e.g., future marketing partners, future affiliate marketers, etc.).
The rules for these requests are set out in section 10(2) of CASL and section 5(1) of the Governor in Council Regulations under CASL (GIC Regulations).
The requirements for express consent requests for as yet unidentified third parties require, among other things, that commercial electronic messages (CEMs) identify the person that obtained consent (as required by CASL), any person with whom electronic addresses are shared also comply with CASL’s unsubscribe requirements and that recipients may choose to unsubscribe from the person that obtained consent or any other person authorized to send CEMs.
There are also obligations on third parties with whom electronic lists have been shared to notify the original person that obtained consent as to the scope of an unsubscribe request by a recipient (i.e., who the recipient is requesting to be unsubscribed from).
Given the complexity of the rules under CASL for express consent requests for as yet unidentified third parties, many marketers opt not to make such consent requests and limit consent requests to the actual sender and identified third parties (e.g., known and identified affiliates).
Having said that, if marketers want to request and obtain express consent for as yet unidentified third parties, they are well advised to carefully review the applicable rules under CASL and the GIC Regulations. Practically, it is also prudent to have list sharing agreements in place with third parties that reflect the obligations set out under CASL for those requesting consent for unidentified third parties and the third parties that include, among other things, representations by the third parties to comply with CASL and indemnities in favour of the person obtaining consent in the event the third party fails to comply with CASL.
In this regard, CASL is broad enough for liability for not only the senders of unsolicited CEMs (in this case, third parties with whom lists may have been shared) but also those that “aid, induce, procure or cause to be procured the doing of any act” that violates section 6 of CASL (e.g., a person that initially obtained consent and then shared an electronic marketing list with a third party(ies)).
For more information about CASL, see: Canadian Anti-Spam Law (CASL), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors 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: CASL Precedents and Forms.
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SERVICES AND CONTACT
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, 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.
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For more information about our firm, visit our website: Competitionlawyer.ca
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
