Anti Spam Laws: Protection or Prison?
CASL Requirements: Protect Canadians? Problem for Business? You Decide
Specific CASL requirements: Our followers have asked for more Canadian Anti Spam Legislation information. You asked for easy to understand language. In our last article in our CASL series, we outlined the government’s rationale behind the new CASL legislation, what they are attempting to regulate and how, and the penalty provisions which will be in place to enforce violations of the new law. In addition we explored why it’s important that individuals and corporations who communicate electronically should take the new law seriously and ensure they take the necessary steps to be compliant at the legislation’s implementation. Here is a link for those who want the full text of Canada’s new anti spam law.
In this article we will explore what you must do to be compliant, and some steps you can take to ensure you don’t run afoul of the new legislation following its implementation on July 1, 2014.
The Email Spam Being Targeted
In regulating email spam, the government targets what are identified as Commercial Electronic Messages (CEMs). As defined in the legislation, a CEM is:
an electronic message that, having regard to the content of the message, the hyperlinks in the message to a website, and the sender’s contact information in the message, it would be reasonable to conclude the CEM has, as one of its purposes, to encourage participation in a commercial activity, including marketing, advertising, or promotions.
As seen in how the legislation defines CEMs, CASL focuses on the message, not on the sender of the message. The threshold issue is whether it is a commercial electronic message, which includes any conduct of a commercial character whether or not it is “in the expectation of profit”. If you are one who regularly communicates electronically in the course of your employment or business, you must ensure all your future messages contain the following components.
Three CASL Requirements CEMs Must Contain
In order to pass scrutiny and meet CASL requirements as an acceptable CEM, three components must be present in the message: 1) Consent; 2) Information; and 3) an Unsubscribe mechanism.
Canada Anti Spam Legislation Consent
CASL requirements state that the sender of any CEM must have the recipient’s express or implied consent prior to sending the message. In addition, the onus is on the sender to prove that consent was obtained, either orally or in writing. The consent requirement can be quite onerous as the legislation does not allow opt-out consents, meaning a sender cannot send an email to a number of individuals and merely give them the option of opting out at a later date. The message must be a positive or explicit indication of consent such as providing an email address of checking a toggle box. To send the message without consent in place is, in most circumstances, a violation of CASL.
Commercial Electronic Message Information Requirements
The second component regarding CASL requirements of any CEM requires that the sender of the message clearly identify her/himself and any party on behalf of whom the message is sent. It also requires that the sender include contact information including her/his name, company, mailing address, phone number, and email address.
CASL Required Unsubscribe Mechanism
The third CASL requirement of any CEM is that the recipient (who has previously given her or his consent) be able to unsubscribe from receiving future electronic correspondence from that sender. This means that the sender of the email must set out an unsubscribe process allowing a straightforward mechanism for the recipient to exclude her or himself from receiving future electronic communications.
CASL places additional Anti Spam CASL requirements on the unsubscribe mechanism, including that the unsubscribe request be given effect within 10 days of the original sender having received it, that the unsubscribe mechanism in the original e-communication be effective for 60 days, that the unsubscribe be at no cost to the recipient of the original e-communication, and that the unsubscribe option be clearly and prominently set out in the original e-communication.
Transitional Periods for Existing Relationships
Although the bulk of the CASL requirements come into effect on July 1, 2014, it does permit a transitional period under limited circumstances. Specifically, CASL allows implied consent for a 3 year transitional period for parties already in an existing business or non-business relationship.
The new law states that an “Existing Business Relationship” is deemed to exist if in the two years prior to sending the CEM, the recipient had a business relationship with the sender, arising from a number of permitted scenarios including having purchased goods or services or having had a written contract between the sender and the recipient.
CASL also grants implied consent to send a CEM where there is an “existing non-business relationship”. This is defined as a situation where the sender is a registered charity, political party, or candidate for office, and the recipient has made a donation or performed volunteer work in the preceding two years. It also allows an implied consent exception where the sender is a club, association, or volunteer association and the recipient has been a member in the preceding two years.
Commercial Electronic Messages
Exceptions To The 3 CEM CASL Requirements
Within CASL are a number of exceptions to the three Commercial electronic message CASL requirements outlined above. These include such things as person-to-person e-communications if there is an existing “family relationship” or “personal relationship”, or internal messages within an organization where the messages concern the activities of the organization. Also included are messages sent to a person engaged in a commercial activity containing an inquiry or application regarding that activity, or a response to such an inquiry.
There are several other narrow exceptions within the legislation, and although these exceptions exist, it is recommended that you do not rely on these moving forward in your business as they appear to be very limited in their scope.
Due Diligence Defence
Most importantly as you prepare for the implementation of CASL is that you do your due diligence in ensuring you have taken meaningful steps to comply with the legislation. CASL specifically states that a person “must not be found liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation”. In essence, you must be able to demonstrate that your organization has taken proactive steps to establish policies and procedures to ensure CASL requirements are met, compliance and properly monitor and enforce these policies.
Getting Help With Canada’s Anti Spam Laws
For more information on specific steps you can take, click here to see how Kahane Law Office can help you implement steps to prepare for the upcoming CASL deadline dates.
It is up to you and your respective organization or business to ensure you are compliant with CASL requirements at the time of its implementation. CASL is a Canadian federal law. This means that our lawyers can assist businesses across Canada. The CASL audit lawyers at Kahane Law Office can help with your CASL legal needs including dealing with commercial electronic message requirements. CONNECT NOW. We can be reached toll-free at 1-877-225-8817 (or 403-225-8810 locally in Calgary, Alberta), or email us directly here.