canada's anti spam laws by brandon hastings

Canada’s Anti-Spam Laws:Commercial Electronic Communications

Presented by:

Brandon Hastings BBA(Dist.), JD

Articled Student

+1 (604) 273-8481 | [email protected] | www.richmondbclawyers.com


Agenda

Presentation Take-aways

About CASLCommercial Electronic

Messages (“CEMs”)

What is a CEM?Which CEMs are

covered by CASL?CEM Requirements

Content

Consent


Introduction

• CASL: Cheat-sheet for doing business http://bit.ly/BHasCASL

• Campbell Froh May & Rice LLP, Articled Student

• Top-of-class business graduate

• International Business Case Competitions

• UBC Law Graduate

• Masters-level Law Courses at National University of Singapore

• ISS of BC Board Member

http://bit.ly/BHasCASL


• General concepts

• Not advice based on your particular circumstances

Give useful information and overview re CEMs

• Legal advice

• CRTC

• Government

• Private Sector

Double-check your policies


Before

(a) that is sent by an employee, representative, consultant or franchisee of an organization

(i) to another employee, representative, consultant or franchisee of the organization and the message concerns the activities of the organization, or

(ii) to an employee, representative, consultant or franchisee of another organization if the organizations have a relationship and the message concerns the activities of the organization to which the message is sent;

After

Intra- or Inter-organizational communications with respect to ongoing relationships/projects, etc.


Presentation Takeaways

CASL is complex

and penalties

may be high

There is a due

diligence defense

The Onus is on you to

prove compliance

Seek express consent

Seek legal advice for creative

strategies

Keep records


bit.ly/CFMRCRTCFAQ


“A person must not be found to be liable for a violation

if they establish that they exercised due diligence to prevent the commission of the violation.”

Section 33(1)


State of CASL

Up to 140,000 complaints have been received

• No fines levied

CFIB Survey: small business

• June 25, 2014

• 38% have taken steps to comply

• 15% of owners are fully aware of CASL’s requirements

DEVELOPING A COMPLIANCE PROGRAM


Compliance and Enforcement Bulletin CRTC 2014-326

ComplianceSenior

Management Involvement

Risk Assessment

Written Corporate

Compliance Policy

Record Keeping

Training Programs

Auditing and Monitoring

Complaint-handling System

Corrective (Disciplinary)

Action


Compliance and Enforcement Bulletin CRTC 2014-326

Due Diligence Defense

Senior Management Involvement

Risk Assessment

Written Corporate

Compliance Policy

Record Keeping

Training Programs

Auditing and Monitoring

Complaint-handling System

Corrective (Disciplinary)

Action

WHAT IS CASL?


CASLAn Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

Electronic Commerce Protection Regulation (CRTC)

Electronic Commerce Protection Regulation (Governor in Council)


CASL Timeline

Dec 15, 2010

-Royal Assent

July 1, 2014-

CASL in Effect

July 1, 2017-

CASL Enforcement Begins


Regulatory Impact Analysis StatementGovernment of Canada

“The general purpose of Canada's Anti-spam Legislation (CASL) is to encourage the growth of electronic commerce by ensuring confidence and trust in the online marketplace. To do so, the Act prohibits damaging and deceptive spam, spyware, malicious code, botnets, and other related network threats.”

80% of CEMs are Spam

“The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities…”


Interpretation of CASL

"Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.“

Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27

“Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

Interpretation Act, RSC 1985, c I-21


CASL

Reputed as World’s Toughest

Private causes of

action

$1M fines for individuals

$10M fines for

organizations


Prohibited Commercial Activities

Alteration of Transmission Data in Electronic

Messages

Installation of Computer Programs on other’s

Computers

Sending Messages

COMMERCIAL ELECTRONIC MESSAGES


CEMs – Major Topics

What is a CEM?

Which CEMs are covered

by CASL?

Which are exempt?

Content Requirements

of CEMs

Identification Requirement

Unsubscribe

Consent Requirements

Express Implied


Prohibitions on CEMs

• “send or cause or permit to be sent”

– or “aid, induce, procure or cause to be procured”

• a “commercial electronic message”

• to “an electronic address”


Who is Liable?

An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in

A person is liable for a violation that is committed by their employee acting within the scope of their employment…


Electronic Address

“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.

CASL does not catch communications which the audience must “pull.”

(eg. websites, blogs, social media posts, etc.)


Purchase

Sell

Ask for Consent

Barter

Lease

Invest

Gaming

Promote Person

Promote Product

or Service

Commercial Electronic Message

Commercial Electronic Messages

sent viatelecommunications

despite expectation of profit

“reasonable to conclude has as … one of its purpose, to encourage participation in a commercialactivity”


May be exempt from CASL if CEM is:

solely a request for information regarding

commercial activity

a family or personal message

a communication with respect to ventures in

common(internal or external)

responses to inquiries, complaints, etc.

pursuant to legal right, obligation,

enforcement

communication on a third-party or sender-

provided service

message for fundraising by a

charity or political party

first message of referral

(specify who referred, and that it’s a referral)

fax, two-way voice between individuals


Foreign States

• 116 States

• Including USA, UK, China

• Excluding Mexico

• “Reasonably believes… will be accessed”


CASL’s Many Exceptions

Read up on/seek advice if you plan to rely on

exceptions

CONTENT REQUIREMENTS


60 day Validity

Unsubscribe Mechanism

• Accessible through web browser

• Accessible by same means message was sent

• “Able to be readily performed”

Identification Information

• Must identify:

• originator

• sender

• Include originator’s:

• mailing address

• phone, email, URL

CONSENT REQUIREMENTS


The Dark Side of Consent

“Must ensure” that

unsubscribed “without delay,” and

“no later than 10 business days after the indication has been sent”


CASL Exempt

Consent Exempt

Implied Consent

Express Consent


Exceptions to Consent Requirements(Content Req’s Still Apply)

referral (special rules)reply to request for

quote

facilitates previously agreed-to transaction

incl. delivery of goods/services

info re warranty, recall, safety, or security of

product/service recipient uses, used or

bought

info re ongoing subscription, loan,

account, or membership

info re existing employment relationship

EXPRESS CONSENT


Express Consent

Separately Sought |Opt-in |Keep Records

IMPLIED CONSENT


Networkers and SalespeopleRejoice!

“disclosed”

“conspicuously published”

withoutstatement prohibiting

CEMs

messages related to capacity in that role


Up to 2 Years afterpost-July 1, 2014

Catalyzing Event

Sender

• Political Party, Charity

• Not-for-profit

Recipient

• Donated, Volunteered

• End of Membership


Up to 2 Years afterpost-July 1, 2014

Catalyzing Event

Bought or Bartered for

Leased Goods or Services

Land

Accepted Business

Investment

Gaming Opportunity

Formed Written Contract

Respond to an inquiry related to any of these(within 6 months of inquiry)

SHARING CONSENT


•GymOriginator

•Food Store

•Supplements StoreThird

Parties


The Unknown Third Party

Gym

Unsubscribe to Gym

Food Store

Unsubscribe to all 3rd Parties

DATA COLLECTION


Data Collection

• Contact Info

• When / Catalyzing Event

• Type of Relationship

• Express Consent?

• Proof of Express Consent

– Audio recording

– Third-party verification

– Database + processes

CONCLUSION


Existing Business and non-Business Relationships

Personal Relationships

Cold-callers

Networkers

Customers

Explicit Consent


Presentation Takeaways

CASL is complex

and penalties

may be high

There is a due

diligence defense

The Onus is on you to

prove compliance

Seek express consent

Seek legal advice for creative

strategies

Keep records


Resources

• CRTC’s CASL Website: www.crtc.gc.ca/antispam• CRTC Articles:

– Guidelines to help businesses develop corporate compliance programs: Information Bulletin CRTC 2014-326

– Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation: Information Bulletin CRTC 2012-549

– Guidelines on the interpretation of the Electronic Commerce Protection Regulations: Information Bulletin CRTC 2012-548

• My article: http://bit.ly/BHasCASL

THANK YOU