casl june 2014

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  • Canadas Anti-Spam Legislation (CASL)

  • 2What is CASL?

    Shortened from the very long 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, the Act became known as

    CASL (Canada's Anti-Spam Law).

  • 3CASL applies to all of us.

    Not just for those that send us ridiculous promotional emails (spam)

    Targets ALL commercial electronic messages

    This means your emails and texts have to comply with both the applicable privacy laws and with CASL, and this may not be easy

    for the solo or small business. In short, with limited exceptions,

    you will no longer be able to send a commercial email or text

    message to anyone who has not provided you with consent in

    advance. And if you do obtain the required consent, your

    message must comply with content rules, mostly involving stating

    your identity and allowing the recipient to withdraw

    consent/unsubscribe at any time. "CASL applies to any message

    sent to an electronic address, which includes email, an instant

    messaging account, a telephone account, or anything similar.

  • 4Commercial Electronic Messages (CEMS)

    A commercial electronic message is defined as "any electronic message that encourages participation in a commercial activity,

    regardless of whether there is an expectation of profit "The

    content of the message and the intent of the message is what will

    be used to determine if it is commercial or not. Are you providing

    a link to your website? Are you sending it on behalf of your

    business or yourself? It can be interpreted very broadly." The law

    applies to all computer systems located or accessed in Canada,

    regardless of where the sender or recipient is located. Employers

    can be held vicariously liable for the actions of their employees,

    and directors/officers can be held to be personally liable if they

    instruct others to contravene CASL.

  • 5Understanding what SPAM really means

    It is important to note that even one email can be a problem, which is another reason why the word "spam" is misleading. You

    do not have to send out an email blast or a group email to

    contravene CASL. Any one of your emails or texts, sent to a

    single person, can be problematic if you do not obtain consent

    and follow the rules with care. If you go through all the electronic

    messages you send through your company, you will find that most

    of them will be caught under CASL in the commercial EM

    category. Even if there is not an immediate pay-off, usually the

    intent of sending a message from your company is to encourage

    participation in your business.

  • 6The CONSEQUENCES

    The legislation was created with the ability to impose penalties

    Not complying with CASL can cost you $1 million (individual) or $10 million (company). You can also incur unlimited fines or

    imprisonment for false or misleading messages. And not only can

    you be fined by a regulatory body, you can also be sued by the

    general public. An individual or a group of individuals can seek

    $200 per message received or $1 million per day, plus

    compensatory damages.

  • 7Small Business and CASL

    So what does all this mean to the small business? It means that your usual course of business may need reassessing. If you send

    out monthly newsletters, links to your website, a summary of your

    blog or a list of your services, notice of upcoming sales and

    promotions, etc., you will have to obtain the consent of every

    recipient in advance, unless they fall into the list of limited

    exceptions (friends, family, an existing relationship, to name a

    few).

  • 8What you can do now

    Since CASL is not yet in force, (effective July 1, 2014) there are steps you should be taking right now. Make note of where you are

    getting [a potential client's] information from before sending

    CEMs. Mark down the types of consent you are getting and where

    you are getting it from - if you collect business cards at functions,

    for example. People can start adapting the way that they market

    now, in light of CASL and focus on different avenues that involve

    more one on one contact. You can also request consent now from

    the people you currently send commercial electronic messages to

    and track this.

  • 9CASL will change how business is conducted

    The ultimate effect of CASL, is that it may mean reverting to old school methods of advertising, where face to face contact becomes crucial to obtain new business. This might include speaking for free in your community, joining online groups, sponsoring local events, being active on popular websites like Facebook and Twitter, and lastly, make certain you can be found. This last point usually requires developing a website for your business that is constantly updated and contains information that is of interest to the public at large.

    No one will want to be the test case for this legislation. You do not want to be that company that someone brings a class action against, and you don't want to be the company that the regulatory bodies decide to investigate. There will likely be some heavy penalties in those first test cases. Take steps now to make sure it's not you who will be paying them.

  • 10

    The good news

    Knowing that people and businesses may need to change their practices when it comes to sending commercial electronic messages (CEMs), the legislation includes a transitional provision that relates to the consent requirement. There are two types of consent - express and implied. The transitional provision set out in section 66 of CASL applies to implied consent.

    Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs.

  • 11

    Express Consent

    Express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014,

    then that express consent remains valid after the legislation

    comes into force. It does not expire, until the recipient withdraws

    their consent.

    Remember to track how you obtain consent.

  • 12

    How can I obtain express consent?

    Consent can be obtained either in writing or orally. In either case, the onus is on the person who is sending the message to prove they

    have obtained consent to send the message.

    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.

  • 13

    Common ways to obtain consent

    Add a mailing list sign up tab or feature on your website for visitors.

    Sending an email now to obtain express consent.

    If you use a check box to obtain consent, ensure it is not pre-checked. Contacts must

    knowingly choose to provide consent.

    Always include convenient opt-out options. You have 10 days to comply with a request to

    opt-out.

  • 14

    Tools and tips to help small business

    Purge your contacts that you have not received consent to contact before July 1, 2014.

    Consider an email marketing tool for your business they have built in the necessary consent tools. (Constant Contact, MailChimp,etc.)

  • 15

    Learn More

    The examples provided in the information bulletin are not exhaustive. They are simply examples of recommended or best

    practices. They may not necessarily be appropriate in every

    situation. Compliance will be examined on a case-by-case basis

    in light of the specific circumstances of a given situation.

    The Frequently Asked Questions Section of the website for Canadas Anti-Spam Legislation can answer questions about sending messages, consent and other important information.

    http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00050.html#Commercial

  • 16

    Canadas new Anti-Spam Legislation comes into effect on July 1, 2014. Here are some Government of Canada resources to help understand what

    this new law means.

    Canada Business Network resources:

    Fighting spam: Protect your business and your customers