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CASL – Outsell Leadership Council. Canada ’ s Anti-Spam Legislation and Regulations. Disclaimer. T he information provided herein does not constitute legal advice and should not be used as a substitute for seeking such advice . - PowerPoint PPT Presentation


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CASL Outsell Leadership Council Canadas Anti-Spam Legislation and Regulations#DisclaimerThe information provided herein does not constitute legal advice and should not be used as a substitute for seeking such advice.To avoid potentially misleading participants, I am not in a position to answer hypothetical or situational questions such as what if I as I cannot measure the varying circumstances or procedures you may have in place. These types of questions should be either reviewed by your legal counsel or sent in writing to the CRTC, for their review and interpretation.

#History2004-2005 Canadian Task Force on Spam

April 2010 The Electronic Commerce Protection Act tabled in House of Commons

May 2011 Fighting Internet and Wireless Spam Act #History & TimelineDecember 2010 CASL given Royal Assent by Govenor General

December 2013 Canada's Anti-Spam law Announced as Coming Into Force

July 2014 CASL (CEMs) Comes Into Force#TimelineJanuary 2015 CASL comes into force (programs)

July 2017 CASL comes into force (PROA)#CASLWHY?#Do I send Commercial Electronic Messages?CASL does not apply to:non-commercial activity voice, facsimiles or auto-recorded voice calls (robo-calls) broadcast messaging including tweets and posts

A Commercial Electronic Message (CEM) is a message whose purpose is to encourage participation in a commercial activity#To be clear, if the purpose or one of the purposes is to advertise, promote, market or otherwise offer a product, good, service, business or gaming opportunity or interest in land, these messages are clearly CEMs. The mere fact that a message involves commercial activity, hyperlinks to a person's website, or business related electronic addressing information does not make it a CEM underthe Actif none of its purposes is to encourage the recipient in additional commercial activity.

Does not apply to:non-commercial activity (s.1(1))voice, facsimiles or auto-recorded voice calls (robo-calls) (s.6(8))broadcast messaging including tweets and posts (s.5)

From the RIAS: To the extent that a message is sent in a pre-existing commercial context but does not fall within the definition of a CEM provided in subsection1(2) and subsection1(3) of CASL, it is not a commercial electronic message for the purposes ofthe Act. If the message involves apre-existingcommercial relationship or activity and provides additional information, clarification or completes the transaction involving a commercial activity that is already underway, it would not be considered a CEM since, rather than promoting commercial activity, it carries out that activity. Moreover, surveys, polling, newsletters, and messages soliciting charitable donations, political contributions, or other political activities that do not encourage participation in a commercial activity would not be included in the definition. However electronic messages may come within the definition of a CEM if it would be reasonable to conclude that one of the purposes is to encourage the recipient to engage in additional commercial activities, based on, for example, the prevalence and amount of commercial content, hyperlinks or contact information. To be clear, if the purpose or one of the purposes is to advertise, promote, market or otherwise offer a product, good, service, business or gaming opportunity or interest in land, these messages are clearly CEMs. Most notably,the Actaims to limit the opportunity to advertise, market, promote, or otherwise offer products or services under the guise of anon-commercialelectronic message. If it is reasonable to conclude that the message has one of those purposes, then the message would be considered to be a CEM and, subject to exclusions, the requirements ofthe Actwould apply. Sending to an Electronic Address?Under CASL an electronic address could beAn email accountA telephone accountAn instant messaging accountAny similar account

#Do I Have Consent?Express Consent Did the recipient say yes to receiving your CEM?An individual must take action to opt-in to a stated purpose

Implied Consent Can you show that you have an existing business or non-business relationship?Did the recipient disclose their address to you? Is the address published? Is there a statement saying they dont wish to be contacted?#CASL is based on an opt-in consent regime, which stipulates that no electronic message can be sent without:

Express Consent (s.6(a))Can be determined when the organization presents an opportunity for the individual to express positive agreement to a stated purpose. Unless the individual takes action to "opt in" to the purpose in other words, says "yes" to it the organization does not assume consent.

Implied ConsentArises where consent may reasonably be inferred from the action or inaction of the individual and is also further determined in section 11 regarding existing business relationships and existing non-business relationships. Implied consent also covers situations of conspicuous publication or disclosure. (s. 10(9) and 10(10))Can you show where you got each electronic address?

You need to track how you obtained consent of each individual to whom you send CEMs.

Note: A message sent seeking consent to send CEMs is also considered a CEMDo I Have Consent?#When is Consent Not Required?Quotes or estimatesMessages that facilitate or confirm transactionsProvides warranty, recall, safety or security informationProvides information about ongoing use or ongoing purchasesongoing subscription, membership, accounts, loans or similaremployment relationships or benefit plansDelivers a product good or service, including updates and upgrades

NOTE: ID and Unsubscribe mechanism are still required for these types of messages

#CASL does not apply to messages if:

You have a Personal Relationship with the recipient individuals have a personal relationship (taking into consideration any relevant factors); andyouve had direct, voluntary,two-way communication.

You have a Family Relationship with the recipientmarriage,common-lawpartnership or any legalparent-childrelationship; and youve had direct, voluntary, two-waycommunication.

Is My Message Exempt?#Factors to consider for personal relationships: individuals 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 personIs My Message Exempt?CASL does not apply to messages that are sent:Within or between business, where theres an ongoing relationship;In response to a request; To enforce a legal right or obligation;Via closed messaging systems;Proprietary systemMessaging systems where ID and unsubscribe included on platformTo a foreign jurisdiction in compliance with their spam law; (see Schedule 1 in the ECPR)By registered charities raising fundsBy political candidates or organizations, soliciting political contributions#13Under regulatory authority in section 6(5)B2BExempting commercial electronic messages that are sent: (a) within an organisation, that concerns the business or affairs of that organisation; or(b) between two organizations, wherei. the two organisations have a business relationship; andii. the message relates to the business relationship between the two organisations.

Responding to Inquiriespermitting commercial electronic messages that are sent in response to a request, inquiry or other solicitation by or on behalf of the person to whom the message is sent.

3) Required by Lawexempting commercial electronic messages that are sent for the purpose of enforcing a legal right arising from an agreement or other legal obligation4) An example: A Brazilian company sends a commercial e-mail to Brazilians who happen to be in Canada to watch the soccer world cup, i.e. in Canada when they access the message The company in Brazil could not have known that a certain number of their subscribers would be in Canada when they receive the message.

To be clear, the Act would not apply to these messages at all, no consent, ID and unsubscribe requirements What Should I do to Prepare?Examine your messagesDo you send CEMs?Are they covered by CASL?

Provide ID and unsubscribe mechanismClearly identify yourselfProvide an unsubscribe mechanism in every CEM

Get consentEither get clear express consent or track the source of implied consent

Manage your contact listMake sure you can demonstrate consent for every recipientBe able to act on unsubscribe requests#2) Installing software on other peoples devicesConsentSpecial CasesComing into Force#When Do I Need Consent?You need to have express consent when installing a computer program on someone elses device

The only exception is when you are acting in accordance with a court order#Installation of computer programs on someone elses device requires consent (s.8)

Do I Need To Seek Consent?There are certain categories of programs where a person is considered to have provided express consent to installation:

When TSPs install software toProtect their networksUpgrade or update their networks

When addressing a failure in the system software or hardware

If the program youre installing is aA cookie,HTML code,Java Scripts,An operating system,A program executable only through the use of another computer program that you previously obtained consent to install#1. deemed consent for TSPs to install computer programs to protect the security of the network from a current and identifiable threat to the availability, reliability, efficiency or optimal use of its network.2. deemed consent for TSPs to install computer programs to update or upgrade their networks. 3. deemed