June 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.
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 common CASL compliance error that I see is the bulk collection of online e-mail addresses without being able to meet the so-called “conspicuous publication” category of implied consent under CASL.
In this regard, CASL includes a number of potentially helpful categories of implied consent, both in relation to marketing to consumers and B2B marketing, and exemptions from the unsolicited electronic marketing rules altogether.
For example, CASL includes two B2B related categories of implied consent, including one for the collection of e-mail addresses that are conspicuously posted online or elsewhere.
However, the test for this category of implied consent (as with other types of CASL implied consent and exceptions) is very specific and requires, in this case, that a 3-part test be met for each e-mail collected online.
Among other things, this conspicuous publication category of implied consent requires that any marketing sent to a person whose e-mail was posted online is “relevant to [their] business, role, functions or duties in a business or official capacity.”
It is, therefore, not sufficient that an e-mail is merely posted online (or elsewhere, such on social media platforms), unless the sender can also prove that the electronic address was conspicuously posted, there is no accompanying statement that the recipient does not wish to receive unsolicited CEMs and the relevance test discussed above is met.
In all cases, the onus is on senders to be able to prove that consent to send CEMs has been met and the CRTC has commenced enforcement where marketers could not meet all of the requirements of this category of implied consent and, in particular, that marketing e-mails were relevant to recipients.
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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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
