Countdown To CASL
June 23, 2014
By Brad Smith
On July 1, 2014 the new Canadian Anti-Spam Law or “CASL” legislation comes into force. The purpose of the Act is “to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities.” While this law may be a welcome reprieve for many of our inboxes, there are things that you need to know about the laws in order to ensure that you and your organization stay out of trouble.
The legislation is highly complex and technical in nature and has far reaching effects on organizations and individuals. It will be implemented in stages:
- July 1st, 2013: The prohibitions and regulations surrounding commercial electronic messages (CEMs).
- January 15th, 2015: The installation of computer programs. The legislation will apply whenever a computer program is installed on another person’s computer system from a person or computer inside Canada.
- July 1st, 2017: The right to bring a private or class action lawsuit against “spammers” will be implemented.
Rather than exclusively targeting what is known as “spam”, the legislation has broader application. It applies to all messages which could be deemed a “commercial electronic message” (CEM). Electronic messages with a “commercial purpose” fall under this category and include offers to purchase, advertisements, gaming opportunities sent via email, telephone accounts, and direct or private messages on social media.
Compliance with the law is important with penalties of up to $1,000,000 for individuals and $10,000,000 for organizations, companies and groups. There are 3 main requirements to follow when sending CEMs:
- Identify: The sender must clearly identify themselves and the person the message is being sent on behalf of (if applicable). Accurate contact information must be provided to the recipient and this information must remain valid for a minimum of 60 days following the transmission of the message.
- Consent: The sender must have consent in order to send a CEM. Consent can be either express or implied in situations such as an existing business relationship or if the recipient has disclosed to the sender the address to which the message is sent. Keep in mind however that implied consent expires and the burden of proving this consent is on the sender. Therefore, the best way to ensure that you have consent is to obtain express consent prior to July 1st. Express consent does not expire but make sure to send out any requests before July 1st, or the request itself will be considered spam!
- Unsubscribe: An unsubscribe option must be included in the message. It must be easy to use, free of cost and take effect within 10 days.
There are a number of exceptions to these requirements. Some of the exceptions are to the consent element only; proper identification and an unsubscribe mechanism is still required. These exceptions can include providing warranty information, quotes or factual information about a product or service. There are exceptions to the section 6 prohibitions and do not require identification, consent or an unsubscribe mechanism. These exceptions include messages that are not CEMs, computer systems not located in Canada, certain family relationships and registered charities and political parties seeking donations.
There are steps to ensure you and your organization comply with these regulations:
- Become familiar with CASL’s requirements. You can view the legislation here, CRTC regulations here, Governor in Council regulations here, and tips from the Government of Canada here.
- If possible, obtain express consent prior to July 1st!
- Do an inventory of all messaging and downloading activities that you or your organization currently partakes in.
- Identify any gaps in your procedures.
- Develop a method to prove consent and adherence to the requirements.
- Update processes and best practices.
- Ensure all staff members are trained in the importance and new regulations.
The Anti Spam Legislation is brand new to Canada, and one of the toughest of its kind in the world. While nobody can be sure of the full implications of the impending legislation, being aware and prepared can protect you and your organization from liability. In order to further assist you, more resources are provided on the Government of Canada’s website.