canada's anti-spam legislation

Canadian Anti Spam Law (CASL)


Why?

An 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


Who Should Be Compliant?

Anyone who makes use of commercial electronic messages, is involved with the alteration of transmission data, or produces or installs computer programs needs to be aware of this law.


Coverage?

?

Spam

Malware

Spyware

Address harvesting

False and misleading representations involving the use of any means of telecommunications

Short Message Services (SMS

Social networking, websites

URL's and other locators

Applications

Blogs

Voice over Internet Protocol (VoIP),

Current and future internet and wireless telecommunication threats


What Is Commercial Electronic Messages (CEMs):

First question to ask is one of the purposes to encourage the recipient to participate in commercial activity?

When determining whether a purpose is to encourage participation in commercial activity, some parts of the message to look at are:

• Content of the message• Any hyperlinks in the message to website content or a database• Contact information in the message.

Important Note: The simple inclusion of a logo, a hyperlink or contact information in an email signature does not necessarily make an email a CEM. Conversely, a tagline in a message that promotes a product or service that encourages the recipient to purchase that product or service would make the message a CEM.


Timeline:

July 1, 2014

Becomes active Canadian Anti-Spam Legislation (CASL) – Section 6 CEMs

On 15 December 2010

Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

January 15, 2015

Canadian Anti-Spam Legislation (CASL) – Section 8 Computer Programs

July 1, 2017

Canadian Anti-Spam Legislation (CASL) – Private right of action

April 15, 2011

Amendments to Personal Information Protection and Electronic Documents Act (PIPEDA)


Compliance?If you are sending a CEM to an electronic address, then you need to comply with three requirements.

1) Obtain consent2) Provide identification information3) Provide an unsubscribe mechanism.

Important Note: Section 6 of CASL applies to a commercial electronic message (CEM) that is sent to an electronic address. If both of these elements exist, then section 6 applies. Section 6 does not apply if the CEM is not sent to an electronic address, as defined in the legislation.

Canadian Anti Spam Law

What Is An Electronic Address?

An electronic address is defined in CASL as being: an email account, a telephone account, an instant messaging account, and any other similar account.

@

Important Note: Facebook wall post would not be captured. However, messages sent to other users using a social media messaging system (e.g., Facebook messaging and LinkedIn messaging), would qualify as sending messages to "electronic addresses."

Implied

Express

Non-compliance

Implied (Section 66)36 months•Begins July 1, 2014•Covers existing and non-existing business relationships• Will cease is recipient opts out•Take advantage of period to reach express consent

Express (Section 66)No expiration•Consent should have been achieved prior to July 1, 2014•Only expires if recipient withdraws their consent

Non-compliance (Section 6 and 9)Effective July 1, 2014•Violators required to pay an Administrative Monetary Penalty (AMP)•Individual maximum is $1MM while business max is $10MM

Canadian Anti Spam Law (CASL)Types Of Compliance :

Important Note:

Directors, officers, agents and mandatories of a corporation can be liable, if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation.


How To Obtain Consent?

The CRTC has issued information bulletins to provide guidance and examples of recommended or best practices. Compliance and Enforcement Information Bulletin CRTC 2012-548, among other things, helps explain what information is to be included in a request for consent. The Bulletin also suggests some key considerations that may make tracking or recording consent easier, and therefore, may make it easier to prove consent. They are:

• Whether consent was obtained in writing or orally, • When it was obtained, • Why it was obtained, and • The manner in which it was obtained

Important Note: Compliance will be examined on a case-by-case basis in light of the specific circumstances of a given situation.

Here are some examples

Ways to obtain Consent

CASL - Social Media


Proper Unsubscribe Guidelines?Under CASL, you must include an unsubscribe mechanism in the commercial electronic messages (CEMs) that you send. For example, a CEM sent via SMS may state that an end-user can unsubscribe by texting the word "STOP." Another possibility is a hyperlink that is included clearly and prominently in an email that allows the end-user to unsubscribe by simply clicking it. The hyperlink may also be to a webpage that is readily accessible without delay and is at no cost to the recipient.

You can set up your unsubscribe mechanism in many different ways. It can be broad or very granular.

For example, you can offer a choice to the recipient, allowing them to unsubscribe from all or just some types of CEMs your organization sends.

Important Note: A key aspect is that an unsubscribe mechanism must be "readily performed." It should be simple, quick and easy for the end-user.


The loopholes for B2B organizations

Trade Publication – Organizations can reach out to email addresses that are publically available on online directories, websites or trade magazines.

Disclosure – an email address was shared – i.e. someone gave you their business card or email address.

Existing Business Relationship – An inquire or transaction or inquiry, application or written contract for the purchase or barter of products, goods or services.

Non-Business Relationship – the recipients are members of your organization, or they provided volunteer work, a donation or gift.

Thank YouFor a free consultation on CASL contact

Nikhil Savio

[email protected]

mailto:[email protected]

canada's anti-spam legislation

Small Business & Entrepreneurship