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Queen of the CASL

June 27, 2017                                                                                                                             

Dianna M. Rievaj  | Highlander Law Group

DiannaRievaj

Canada has some of the strongest anti-spam legislation in the world. Starting on July 1, 2017, it is going to get even tougher.

What is CASL?

By now, most small business owners are familiar with the basics of Canada’s Anti-Spam Law (CASL), which sets out the rules for sending Commercial Electronic Messages (CEMs).   Basically anything sent to a potential client via the intern counts as a CEM and the end goal of CASL is to ensure those receiving them have agreed to receive the messages.

Express Consent

That agreement comes in two forms under CASL:  Implied or Express.  Express is the easy one to understand – those are the ‘opt-in’ boxes you check or when you intentionally sign up for a mailing list. From a business owner’s point of view, express is best because once you have it, it’s good forever – as long as the person doesn’t revoke their consent (think ‘unsubscribing’).

Implied consent and the “business card exception”

Implied consent is where it gets a little trickier.  When CASL was introduced a few years ago it came with a ‘transition period’ that expires July 1, 2017.  Under the transition period it was a little grey as to when implied consent expired.  However, the hammer comes down at the end of the month. 

There are two main types of Implied consent. One type is Disclosure.  When a person provides you with their contact information you can send them CEMs as long as they are relevant to the recipient or their business. This is also known as the business card exception; a person who gives you their card has given their implied consent to receive relevant messages.  There is also an exception for “conspicuously published” email addresses (for example those posted on a company website) as long as your CEM is relevant to the recipient.

Another type of implied consent exists where there is an existing business relationship with the recipient.  A business relationship is created when a person buys something from your business or makes an inquiry about goods or services. This type of consent is valid for two years for a purchase and six months if they have made an inquiry. Once the time limit expires it is the sender’s responsibility to remove them from their email list. The rules for charities and political parties are a bit different, but beyond the scope of this blog.

What’s happening on July 1, 2017

Phase 2 of CASL comes into effect on July 1, 2017. Some types of prior consent were grandfathered into phase 1 but on July 1, only consent like the ones outlined above will be considered valid. Any CEMs sent without a valid consent will be considered a violation of CASL.

Most notably for business owners who have been building up their mailing list for years – the onus is now on you to PROVE you have the recipients consent.  So, unfortunately, it’s time to dig out your list and record how you came to have the contact (eg. did they sign up to be contacted by you or are they a past client) and when did you add them to your list.  If they haven’t given you express consent, you have to drop them from your list if the timelines explained above have expired.  Porter Airlines learned this the hard way when they were fined $150,000 for being unable to prove they had consent from the customers on their mailing list.

A third major change was supposed to be that any individual or business can make a claim for damages under CASL. Currently, only the Canadian Radio-television and Telecommunications Commission (CRTC) could police CASL violations. However, this provision was suspended as of June 7, 2017 and there is no word on when it will be brought back.

If your business plans on sending CEMs after July 1, 2017 you should:

 Ensure you can prove you have implied or express consent for everyone on your mailing list.

 Ensure you have system to track implied consents and to remove recipients from your mailing list upon expiry.

 Include a clear opt-out or unsubscribe option in your marketing emails.

Will your business be CASL compliant on July 1st?  Contact us to set up a no obligation consultation with one of our lawyers to review your customer outreach strategy, or for more information on this topic, visit http://www.fightspam.gc.ca/

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