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In December of 2010, the Canadian government announced that as of July 1, 2014, the Canadian Anti-Spam Legislation (CASL) would come in to effect. As a result, organizations of all sizes, charities, non-profits and individuals are tasked with working to comply with the new prohibitions.
In its entirety, the new legislation regulates the sending of commercial electronic messages (CEMs), prohibiting their distribution unless the sender has consent from the receiver and the message includes compulsory information.
Below is a brief overview of the key points you need to know, as Canada prepares for new Anti-Spam Legislation (CASL).
*Please Note: For the purpose of accuracy, information gathered has been referenced from the Canadian Anti-Spam Legislation resource page and the Canadian Radio-Television and Telecommunications Commission, as provided by the Government of Canada.
What exactly is CASL?
Largely, CASL will allow recipients to regulate who they receive CEM’s from. The sender will need to obtain consent from the recipient before sending the message and will need to include information that identifies the sender and enables the recipient to withdraw consent or opt-out.
The majority of concern for businesses revolves around obtaining proper consent from users, for which there are two types - implied and express consent.
Express consent is best, but if you are late to the game on this, you can still work under the basis of implied consent. Essentially implied consent means there is an existing relationship between the sender and recipient. Implied consent with existing business relationships allows businesses to continue sending CEMs for a three-year period initially, unless the recipient indicates they no longer wish to receive messages from the sender. Express consent goes beyond an implied relationship, to show that the person has explicitly opted into receiving CMEs from the sender. Regardless of the type of consent, CEMs will still need to comply with the sender identification and opt-out requirements under.
What is express consent?
Expressed consent is simply consent that has been clearly established. Consent may be expressed verbal, non-verbal or in writing. In any case, it is the responsibility of the person who is sending the message to prove they have obtained consent to send the message. Compliance will be examined on a case-by-case basis in light of the specific circumstances of a given situation
What elements need to be included in CEM’s?
CASL requires a number of elements to be included in all electronic messages. To comply, all CEM’s must include the following elements:
• The name of your organization.
• A working and clearly identified unsubscribe mechanism.
• Messages must include a physical postal mailing address and one additional way to contact the sender (e.g. web form, email address or phone number).
• If you send an initial email to someone based on a referral, the person who made the referral must be stated in the message.
Once in effect, what messages falls under CASL?
• Messages that offer to sell a product or service
• Messages that advertise a product or service
• Messages that promote a person or corporation
• Messages that seek to gather consumer or market information
Additionally, messages requesting consent to send CEM’s are considered commercial electronic messages under CASL.
What messages do not fall under CASL?
• Messages sent between employees of an organization relating to the activities of the organization, e.g., internal organizational email communications.
• Messages sent between employees of two organizations with a relationship, where the message relates to the activities of the recipient, e.g. CEMs sent by an employee at Company X to an employee at a business account with whom Company X has a pre-existing business relationship.
• Messages that respond to an inquiry, complaint, or other solicitation from the recipient.
• CEM’s sent to recipients outside Canada
The CASL will be enforced in three separate stages:
• On July 1, 2014 the anti-spam provisions will take effect, forcing businesses to align their practices with CASL and implement changes to their operations.
• On January 15, 2015, the provisions relating to the unsolicited installation of computer programs or software will come into effect.
• On July 1, 2017, the private right of action will be enforced.
Is there a grace period?
Businesses have a three-year grace period after July 1, 2014 (assuming there is implied consent) to verify and perfect express consent.
Who enforces and regulates the law?
The CASL will be regulated by three government agencies. When the new law is in force, it will allow:
• The Canadian Radio-Television and Telecommunications Commission (CRTC) to issue administrative monetary penalties for violations of the new anti-spam law.
• The Competition Bureau to seek administrative monetary penalties or criminal sanctions under the Competition Act.
• The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.
The CRTC has published final regulations related to Canada's anti-spam legislation. A copy of the regulations can be found on the CRTC website.
What should I consider in developing methods to obtain or prove consent?
1. Review. Examining your current consents and unsubscribe methods.
2. Establish how you obtained contact information.
Have you obtained contact information from a business card at an event?
You then have their implied consent to send CEMs, if that person did not hand you the business card saying that he/she does not want to receive commercial electronic messages and the message you intend to send is relevant to that the person’s business, role, functions or duties in a business or official capacity.
You have obtained the individual’s email address from a mutual business relationship?
If you have received an email address from a mutual business relationship before July 1, 2014 when CASL is in effect, the individual in question would be under implied consent to receive CEM’s. If you receive their contact information after July 1st, you can send them one email to ask for consent to receive further commercial electronic messages from your organization. You must specify in that email who referred them and allow them to withdraw consent from both your organization. If they consent, then you can send them further commercial electronic messages.
3. Get express consent from existing contacts. Express consent does not expire unless it is revoked. Convert your “implied consents” into express “opt-in” consents.
Are there any exemptions?
CASL regulations exempt a message that has been “sent by or on behalf of a registered charity as defined in subsection 248(1) of the Income Tax Act and the message has as its primary purpose raising funds for the charity”
Know your rights! How can you report spam?
For information on how to protect yourself from spam and other electronic threats, visit How to Protect Yourself Online and While Mobile, provided by the Government of Canada.
How will the CASL legislation affect businesses?
For more information on how this legislation will affect you or your business, download the CASL Survival Guide here.
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