casl june 2014
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Canada’s Anti-Spam Legislation (CASL)
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What 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).
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CASL 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.
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Commercial 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.
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Understanding 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.
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The 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.
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Small 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).
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What 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.
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CASL 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.
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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.
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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.
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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.
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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.
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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.)
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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
Canada’s 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#Commer
cial
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• Canada’s 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
Canada's new anti-spam law
Protect Your Business or Organization Online or While Mobile
Industry Canada Resources:
http://www.ic.gc.ca/eic/site/030.nsf/eng/h_00230.html
Canada’s Anti-Spam Legislation:
http://fightspam.gc.ca/eic/site/030.nsf/eng/home
Resources (with links)
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