Canada: Preparing For Canada's Anti-Spam Legislation

This article was originally published in the inFocus Spring '14 Issue.

On July 1, 2014, much of Canada's Anti-Spam Legislation (CASL) will come into force. CASL is intended to promote e-commerce by deterring spam, identity theft, spyware, viruses, phishing and the like. To some degree, individuals and organizations that make use of commercial electronic messages (CEMs) in Canada will need to comply with this law or potentially face hefty fines.

Crowe Soberman values and respects the relationships we have made with you. As a firm that regularly communicates with our clients and friends, our purpose in writing this article is to let you know what steps we are taking to ensure that we are not sending information to you that could be interpreted as SPAM under CASL. I will only cover the portion of CASL that pertains to sending CEMs.

The gist

The Canadian Government defines CEMs as "any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit." CEMS apply to "electronic messages" and "electronic addresses which applies broadly to all telecommunication. Common examples of CEMs are messages to email addresses, social networking accounts, instant messages sent to a cell phone and so on. It does not apply to telephone calls, faxes or traditional mail.

CASL has three basic rules for businesses to follow when sending CEMs. Businesses must:

• have expressed or implied consent to send CEMs;
• (clearly and simply) identify who is sending the CEM or if someone is doing it on another person's behalf; and
• provide a way for recipients to unsubscribe from receiving messages in the future.

It is important to understand the difference between express and implied consent. Express consent means that the recipient has explicitly agreed to receive electronic communication from the sender, such as opting in to receive inFocus

by email. Implied consent is a tentative agreement between sender and recipient, such as dropping off a business card at a trade show. When consent is implied, CASL dictates that the sender may only continue to communicate with the recipient for two years unless express consent is given during that time. It is only six months if responding to an inquiry or application.

Exceptions

Where CASL gets a little more complicated is in the various exceptions to these rules. For instance, CASL does not apply to

CEMs where the recipient:

• has a "family relationship" or "personal relationship" with the sender and they have had direct, voluntary, two-way communication;
• is an employee, representative, consultant or franchisee of the same organization as the sender and the message pertains to activities of the organization;
• is an employee, consultant or franchisee of an affiliate organization to the sender. Hence the organizations have a relationship, and messages sent concern the activities of the recipient's organization;
• has made an inquiry, complaint or has solicited a response;
• is being sent a message to enforce a legal right, such as messages sent for debt collection, licensing, tariff and enforcing contractual obligations, etc.;
• is receiving the message through an electronic messaging service if the identification information and unsubscribe mechanism are conspicuously published and readily available and the recipient consents to receive CEMs (such as on banking websites); and
• was referred by an individual with an existing relationship to both the sender and the recipient, providing that it is a first-time response and the full name of the referrer is used.

Registered charities and political organizations that are raising funds or contributions are also excluded under specific circumstances.

There are also exceptions to the need for consent (express, implied or otherwise), which include CEMs sent:

• as a quote or estimate requested by a recipient;
• during the course of a commercial transaction;
• during the course of delivering a product or service;
• when providing warranty or safety information related to your product or service;
• when providing factual information about a subscription, membership or loan information; or
• when you are providing employment or benefits information.

Crowe Soberman has taken much care over the years to ensure that any distribution lists that we use for our electronic newsletters and invitations are permission-based. We ensure that the sender is clearly and accurately identified and we include a clear and obvious method for our contacts to unsubscribe from future marketing communications.

Going forward, Crowe Soberman will be taking additional steps to be compliant with CASL which include the following:

• Establishing a CASL-Readiness Committee for our office to evaluate and address how CASL applies to our operations, policies and marketing.This will be ongoing.
• Taking steps to improve our data management systems.
• Determining the various types of communications that we make, of the consent that we already have and look to obtaining express consent from new and existing clients and contacts over the next several weeks.
• Removing any email addresses we have obtained under the implied permission rule by July 1, 2017 unless we receive explicit permission from you to continue contacting you. We will review these lists on a regular basis.
• Reviewing and revising, if necessary, any contracts we have with third-parties for CASL compliance.
• Promptly unsubscribing any people or business who request it.
• Continuing to ensure that our email subject lines are straightforward and not misleading.
• Including a postal address or link to our address in the CEMs sent to you, and a link to allow recipients to unsubscribe if they wish.
• Tracking how and when we obtain your consent, since the burden of proof is on us to show that consent was obtained.

I am not a lawyer, nor is this article intended to be legal advice or an all-encompassing interpretation of the law. However, we do feel it is important to provide you with our interpretation of how the section of CASL pertaining to CEMs affects our business' relationship with you and what steps we are taking to uphold this law. If we contact you via electronic means, we may contact you before July 1, 2014 in order to get express consent to deliver CEMs to you that are CASL compliant. Kindly respond if you would like to continue hearing from Crowe Soberman.

There are a number of very good resources on CASL, which clarify or interpret the law and all of its many facets. If you would like to know more, a good starting place would be the Government of Canada website (fightspam.gc.ca). And if you have concerns about how CASL affects your business, you should consult with a legal professional or consultant who is knowledgeable about CASL.

About the Author

Heather is the Business Development and Marketing Manager at Crowe Soberman. Heather has over 19 years experience within the professional services industry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.