Canada’s Anti-Spam Legislation (CASL)
What is CASL? • Shortened from the very long “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities”, and to amend the Canadian Radiotelevision and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, the Act became known as CASL (Canada's Anti-Spam Law).
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CASL applies to all of us. • Not just for those that send us ridiculous promotional emails (spam) • Targets ALL commercial electronic messages • This means your emails and texts have to comply with both the applicable privacy laws and with CASL, and this may not be easy for the solo or small business. In short, with limited exceptions, you will no longer be able to send a commercial email or text message to anyone who has not provided you with consent in advance. And if you do obtain the required consent, your message must comply with content rules, mostly involving stating your identity and allowing the recipient to withdraw consent/unsubscribe at any time. "CASL applies to any message sent to an electronic address, which includes email, an instant messaging account, a telephone account, or anything similar. 3
Commercial Electronic Messages (CEMS) • A commercial electronic message is defined as "any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit "The content of the message and the intent of the message is what will be used to determine if it is commercial or not. Are you providing a link to your website? Are you sending it on behalf of your business or yourself? It can be interpreted very broadly." The law applies to all computer systems located or accessed in Canada, regardless of where the sender or recipient is located. Employers can be held vicariously liable for the actions of their employees, and directors/officers can be held to be personally liable if they instruct others to contravene CASL.
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Understanding what SPAM really means • It is important to note that even one email can be a problem, which is another reason why the word "spam" is misleading. You do not have to send out an email blast or a group email to contravene CASL. Any one of your emails or texts, sent to a single person, can be problematic if you do not obtain consent and follow the rules with care. If you go through all the electronic messages you send through your company, you will find that most of them will be caught under CASL in the commercial EM category. Even if there is not an immediate pay-off, usually the intent of sending a message from your company is to encourage participation in your business.
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The CONSEQUENCES • The legislation was created with the ability to impose penalties • Not complying with CASL can cost you $1 million (individual) or $10 million (company). You can also incur unlimited fines or imprisonment for false or misleading messages. And not only can you be fined by a regulatory body, you can also be sued by the general public. An individual or a group of individuals can seek $200 per message received or $1 million per day, plus compensatory damages.
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Small Business and CASL • So what does all this mean to the small business? It means that your usual course of business may need reassessing. If you send out monthly newsletters, links to your website, a summary of your blog or a list of your services, notice of upcoming sales and promotions, etc., you will have to obtain the consent of every recipient in advance, unless they fall into the list of limited exceptions (friends, family, an existing relationship, to name a few).
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What you can do now • Since CASL is not yet in force, (effective July 1, 2014) there are steps you should be taking right now. Make note of where you are getting [a potential client's] information from before sending CEMs. Mark down the types of consent you are getting and where you are getting it from - if you collect business cards at functions, for example. People can start adapting the way that they market now, in light of CASL and focus on different avenues that involve more one on one contact. You can also request consent now from the people you currently send commercial electronic messages to and track this.
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CASL will change how business is conducted • The ultimate effect of CASL, is that it may mean reverting to old school methods of advertising, where face to face contact becomes crucial to obtain new business. This might include speaking for free in your community, joining online groups, sponsoring local events, being active on popular websites like Facebook and Twitter, and lastly, make certain you can be found. This last point usually requires developing a website for your business that is constantly updated and contains information that is of interest to the public at large. • No one will want to be the test case for this legislation. You do not want to be that company that someone brings a class action against, and you don't want to be the company that the regulatory bodies decide to investigate. There will likely be some heavy penalties in those first test cases. Take steps now to make sure it's not you who will be paying them. 9
The good news • Knowing that people and businesses may need to change their practices when it comes to sending commercial electronic messages (CEMs), the legislation includes a transitional provision that relates to the consent requirement. There are two types of consent - express and implied. The transitional provision set out in section 66 of CASL applies to implied consent. • Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs. 10
Express Consent • Express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent. • Remember to track how you obtain consent.
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How can I obtain express consent? • Consent can be obtained either in writing or orally. In either case, the onus is on the person who is sending the message to prove they have obtained consent to send the message. • The CRTC has issued information bulletins to provide guidance and examples of recommended or best practices. Compliance and Enforcement Information Bulletin CRTC 2012-548, among other things, helps explain what information is to be included in a request for consent. The Bulletin also suggests some key considerations that may make tracking or recording consent easier, and therefore, may make it easier to prove consent. They are: •whether consent was obtained in writing or orally, •when it was obtained, •why it was obtained, and •the manner in which it was obtained.
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Common ways to obtain consent • Add a mailing list sign up tab or feature on your website for visitors. • Sending an email now to obtain express consent. • If you use a check box to obtain consent, ensure it is not pre-checked. Contacts must knowingly choose to provide consent. • Always include convenient opt-out options. You have 10 days to comply with a request to opt-out.
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Tools and tips to help small business • Purge your contacts that you have not received consent to contact before July 1, 2014. • Consider an email marketing tool for your business – they have built in the necessary consent tools. (Constant Contact, MailChimp,etc.)
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Learn More • The examples provided in the information bulletin are not exhaustive. They are simply examples of recommended or best practices. They may not necessarily be appropriate in every situation. Compliance will be examined on a case-by-case basis in light of the specific circumstances of a given situation. • The Frequently Asked Questions Section of the website for Canada’s Anti-Spam Legislation can answer questions about sending messages, consent and other important information. • http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00050.html#Commer cial
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Resources (with links) •
Canada’s new Anti-Spam Legislation comes into effect on July 1, 2014. Here are some Government of Canada resources to help understand what this new law means. Canada Business Network resources: Fighting spam: Protect your business and your customers Canada's new anti-spam law Protect Your Business or Organization Online or While Mobile Industry Canada Resources: http://www.ic.gc.ca/eic/site/030.nsf/eng/h_00230.html Canada’s Anti-Spam Legislation: http://fightspam.gc.ca/eic/site/030.nsf/eng/home
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