22 canada’s anti spam law (casl) march 2014 jason beauchamp rbc insurance

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11 Canada’s Anti Spam Law (CASL) March 2014 Jason Beauchamp RBC Insurance

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Page 1: 22 Canada’s Anti Spam Law (CASL) March 2014 Jason Beauchamp RBC Insurance

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Canada’s Anti Spam Law (CASL)

March 2014

Jason BeauchampRBC Insurance

Page 2: 22 Canada’s Anti Spam Law (CASL) March 2014 Jason Beauchamp RBC Insurance

Additional Notes

• Following our March, 2014 meetings, the following clarifications of the rules became available and were provided by RBC:

• Express Consent: Express consent means that the recipient has received clear notice including a description of the purpose for the

consent and prescribed information about the requestor. Express consent must be obtained from non-clients prior to sending a CEM.

• Third Party Referrals Exemption:  The first CEM that is sent by a person for the purpose of contacting the individual following a referral where the

individual making the referral has a relationship with both the sender and

the target of the referral and the message discloses the name the referrer

and states that the message is sent as a result of the referral.

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Canada’s Anti Spam Law (CASL) Timeline

2009 Bill C-27 - Electronic Commerce Protection Act (ECPA)May, 2010 Bill C-28 - Fighting Internet and Wireless Spam Act (FISA)Dec 15, 2010 Bill C-28 - Canada’s Anti Spam Legislation (CASL) FinalizedSummer, 2011 Publication of CRTC Draft Regulations and Industry Canada

Draft RegulationsMarch 28, 2012 CRTC Final Regulations PublishedOct 10, 2012 CRTC Guidelines PublishedJan 5, 2013 Industry Canada Draft Regulations PublishedDec 4, 2013 Industry Canada Final Regulations PublishedJuly 1, 2014 In force date for most sections of CASL, including CEMsJan 15, 2015 In force date for s. 8 – Installation of Computer Programs

July 1, 2017 In force date for Private Right of Action

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Commercial Electronic Messages (CEM)

Electronic communication sent to an electronic address • email, text, SMS, instant messages, messages sent to

an electronic address associated with a social media site, etc.

Applies to:- Personal and business/work electronic addresses- Messages sent to clients and prospects - Business to Business (subject to exemption in IC

Regulations)- Employer to Employee (exemption has been requested)

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Definitions

“…a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

(b) offers to provide a business, investment or gaming opportunity;

(c) advertises or promotes anything referred to in paragraph (a) or (b); or

(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.”

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Definitions

“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit …

“electronic address” means an address used in connection with the transmission of an electronic message to

(a) an electronic mail account;(b) an instant messaging account;(c) a telephone account; or(d) any similar account.

“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message.

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Commercial Electronic Message (CEM)

Consent Requirements

• Need express or implied consent from the recipient before sending a commercial electronic message

• Express consent may be oral, written or electronic

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Commercial Electronic Message (CEM)

Form Requirements

Identify sender / person on whose behalf message is sent• Sender name and the name under which it carries on business (if

different)

Contact information for sender / person on whose behalf message is sent• Sender mailing address, and either a telephone number, email or web

address 

Unsubscribe mechanism• Must allow recipient to indicate the wish to no longer receive any CEMs,

or any class of such messages, from the sender

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Unsubscribe Mechanism- Must be able to be "readily performed” – Allow recipient to opt-out of any commercial electronic

messages from the legal entity or any specified class of such messages

– Without cost to the recipient– Sent by the recipient using the same electronic means by which

the message was sent, or if not practicable, another electronic method (i.e. electronic address, or link to a page on the World Wide Web that can be accessed through a web browser)

– Must remain active for 60 days after the message is sent– Must be respected within 10 business days

Commercial Electronic Message (CEM)

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Applies to:- Commercial Electronic Messages from a sender located in Canada

to a recipient located in Canada- Commercial Electronic Messages from a sender located in

Canada to a recipient in another country- Commercial Electronic Messages from a sender located in

another country to a recipient in Canada

Does not apply to messages merely routed through Canada (as per Industry Canada Regulations Regulatory Impact Analysis)

Extraterritorial Reach of CASL

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Commercial Electronic Message (CEM) – Implied Consent

Existing Business Relationship between sender and recipient• Purchase or lease of a product, goods, service within 2 years

immediately preceding sending of message• Acceptance of a business or investment opportunity within

previous 2 years• Written contract in existence or expired within previous 2 years

Publication or Disclosure of Electronic Address • The electronic address has been conspicuously published or

disclosed, without a statement that the person does not wish to receive unsolicited commercial electronic messages, and

• The message is relevant to the recipient’s business, role, functions or duties in a business or official capacity.

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Commercial Electronic Messages (CEM) that are Exempt

Personal Relationship -Messages sent by or on behalf of one individual to another individual with whom they have a “personal relationship”, defined as

“the relationship between an individual who sends a message and the individual to whom the message is sent, if those individuals have had direct, voluntary, two-way communications and it would be reasonable to conclude that they have a personal relationship, taking into consideration any relevant factors such as the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated or whether the parties have met in person.”

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Commercial Electronic Messages (CEM) that are Exempt

Family Relationship -Messages sent by or on behalf of one individual to another individual with whom they have a "family relationship“ defined as

“the relationship between an individual who sends a message and the individual to whom the message is sent if those individuals are related to one another through a marriage, common-law partnership or any legal parent-child relationship and those individuals have had direct, voluntary, two-way communication”

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Commercial Electronic Messages (CEM) that are Exempt

Submitting an Inquiry or Application -Messages sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application

Responding to an Inquiry or Application-Messages that are solicited by the recipient or sent in response to complaints, inquiries, and requests

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Commercial Electronic Messages (CEM) -Exemptions from Consent

Business to Business Communications Sent by one employee to another in the same organization; or sent between organizations that already have a relationship, where the message concerns the activities of the organization to which the message is sent.

Messages sent to satisfy a legal obligation or enforce a legal rightIndustry stakeholders raised concerns that the Act captures non-transactional business communications that are required by law or that are sent to enforce a legal right. For instance, in some circumstances, businesses are required to send messages that may be seen as commercial electronic messages, such as electronic bank statements.

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Commercial Electronic Messages (CEM) that are Exempt

Platform Exemption

Closed Messaging Systems

Messages sent to recipients in Listed Foreign States

Charities

Political Parties

Third Party Referrals

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Penalties

Violation Penalty/Fine Private Right of Action

In force July 1, 2017

Sending unsolicited commercial electronic messages to an electronic address

Maximum per breach:$1,000,000 for individuals$10,000,000 for corporations

$200 per day per breach, to a maximum of $1,000,000 per day

Altering transmission data without express consent

Maximum per breach:$1,000,000 for individuals$10,000,000 for corporations

up to $1,000,000 per day

Installing computer programs without express consent

Maximum per breach:$1,000,000 for individuals$10,000,000 for corporations

up to $1,000,000 per day

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Penalties

• An officer, director, agent or mandatory of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against

• Violations may be publicized

• Proceeding must be commenced by CRTC within three years of CRTC becoming aware of violation

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Defences

Due Diligence Defence• A person will not be found liable by CRTC if they exercised

due diligence to prevent the commission of the offence

Undertakings• Avoid a Notice of Violation and Private Right of Action if

sender voluntarily reports contraventions to the CRTC• Undertaking may be publicized

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Next Steps – Things you should consider

Commercial Electronic Messages

• Identify electronic communications sent to clients, prospects and employees

• Determine consent status for each type of electronic communication

• Build databases to record consent / unsubscribe requests

• Create compliant unsubscribe mechanism and templates for electronic communication

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• Consider obtaining express consent from prospects and even existing clients.

• Review and Update Referral Process

• Review practices for obtaining email marketing lists

• For more detail about how CASL may

affect Advisors, we encourage you to contact your respective associations such as Advocis and/or IFB.

Next Steps – Things you should consider