CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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August 2, 2016
Canada’s new federal anti-spam legislation (CASL) came into force about two years ago. Since then, Canadian companies and those marketing into Canada have worked (and at times struggled) to comply with Canada’s new requirements for electronic marketing.
While there has been significant debate about what the new law requires and gaps and uncertainties, enforcement has been relatively sporadic. The handful of enforcement matters have resulted in penalties ranging from the several hundreds of thousands of dollars to a few million.
Key enforcement focuses by the CRTC since the introduction of the new law have related to alleged failures to comply with the core requirements of CASL – i.e., around the consent, identification and unsubscribe requirements. Full CASL compliance, however, involves significantly more than these three core requirements (and what is required will vary according to what is planned for a particular campaign).
While the CRTC (the primary enforcement agency responsible for enforcing the new anti-spam legislation) has issued several bulletins and CASL FAQs, there remain many practical uncertainties around the new law. There has also been to date no decided case to give marketers more guidance – i.e., no decided case beyond the CRTC’s FAQs, guidelines and industry commentary.
Documenting Consent Under CASL
The CRTC, however, continues to issue regulator guidance around the new rules. In this regard, on July 27, 2016, the CRTC issued a new Enforcement Advisory on how business and individuals may keep records of consent under CASL.
The three primary requirements under CASL are: express or informed consent; prescribed identification requirements for collecting consent and sending commercial electronic communications (CEMs); and including easy unsubscribes for recipients.
In general, the CRTC has reminded those marketing to Canadians that the onus for documenting consent for sending CEMs is on the person who sends the message.
In particular, record-keeping practices recommended by the CRTC include: (i) identifying potential non-compliance issues; (ii) investigating and responding to consumer complaints; (iii) identifying the need for corrective actions; (iv) demonstrating that corrective actions were implemented; and (v) establishing a due diligence defense in the event of a CASL violation.
The CRTC also recommends that senders of CEMSs consider keeping a hardcopy or electronic copy of: (i) all evidence of express and implied consent (e.g., audio recordings, copies of signed consent forms, completed electronic forms, etc.) from consumers who agree to receive CEMs; (ii) document methods through which consent was collected; (iii) policies and procedures regarding CASL compliance; and (iv) all un-subsubscribe requests and resulting actions.
Implications & Risks
Despite this most recent guidance from the CRTC, Canadian businesses continue to find practical CASL compliance challenging. Specific challenges include accurately maintaining large distribution lists, ensuring that e-mail lists are updated to reflect consent (and remove unsubscribes) and applying CASL to specific types of marketing campaigns.
The risk, however, continues for companies of all sizes that are engaging in electronic marketing in Canada (both domestic companies and companies marketing to Canadians). This is both based on continued targeted enforcement by the CRTC and will soon include the introduction of class actions under CASL in 2017. It is also not clear that a significant segment of Canadian electronic marketers are adopting more than the bare minimum of CASL compliance steps.
Another practical risk that I’ve observed in practice is that some brands rely on their agencies to provide advertising law guidance. If there isn’t a sound understanding of Canadian advertising law at the agency level, or cost pressure to minimize legal advice on a campaign, this can spell trouble for a brand.
Interestingly, commentary on this new guidance also suggests that US companies are still not widely aware of Canadian anti-spam requirements and may not raise their awareness unless there is increased enforcement (see U.S. Companies Lack Knowledge of Canadian Anti-Spam Laws: Bloomberg).
For an overview of CASL, see: Anti-Spam (CASL).
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Tips For Complying With
CASL (Canadian Anti-Spam Law)
Canada’s federal anti-spam legislation (CASL) came into force in 2014. Since then, electronic marketers and their advisors have been working to comply with what remains a complex law with outstanding uncertainties in some key areas. Having said that, many of the core requirements of CASL are not overly difficult to comply with (though continue to be misunderstood in many cases).
The following are some key legal tips for complying with CASL:
Express Consent. If you cannot rely on any category of implied consent (e.g., an existing business relationship within two years of a purchase) or a CASL exemption, ensure that you have collected and documented express consent from recipients. Express consent requests must include all of the information set out in CASL and its regulations otherwise the consent will not be valid. Failure to correctly collect consent is the most common CASL compliance error we see and a key basis for CRTC enforcement. For more information, see: Anti-Spam Law (CASL), Anti-Spam Law (CASL) FAQs and Canadian Anti-Spam Law (CASL) Precedents.
Implied Consent. If you are relying on one or more categories of implied consent to send commercial electronic messages (CEMs) (e.g., an existing business relationship within two years of a purchase or six months of a product inquiry) ensure that all of the requirements of the particular type of implied consent are met. Remember that there is not a single blanket type of implied consent under CASL; rather, there are many different types of implied consent each with their own specific requirements. Also, as with express consent, CEMs that rely on implied consent must still include the prescribed sender identification information and unsubscribe mechanism. For more information, see: Anti-Spam Law (CASL), Anti-Spam Law (CASL) FAQs and Canadian Anti-Spam Law (CASL) Precedents.
Consent For Third Parties To Send CEMs. Under CASL, consent to send CEMs can be requested for a sender themselves, identified third parties (or multiple identified third parties) or unidentified third parties (i.e., entities whose identities are not yet known when consent is requested). Importantly, however, each type of consent request has specific requirements for the request and, in the case of consent requests on behalf of unidentified third parties, somewhat complex additional requirements. The failure of marketers to correctly request consent for third parties (e.g., partners, affiliates, co-sponsors in promotions, etc.) is another CASL-related error that we regularly see. For more information, see: Anti-Spam Law (CASL) FAQs and Canadian Anti-Spam Law (CASL) Precedents.
CASL Exemptions. Similar to implied consent, there is no single exemption from CASL but many types of exemptions. If you are relying on a particular exemption (e.g., the “business-to-business” exemption) it is important to ensure that all of the requirements of the exemption are met. Importantly, there is little or no case law interpreting many CASL exemptions. This means that there may be more risk when relying on an exemption than express consent. Express consent is the strongest type of consent under CASL, considering that it does not expire unless a recipient unsubscribes.
Passive Consents. Remember that under CASL express consent or a category of implied consent is generally required to send CEMs unless a CASL exemption applies. As such, passive types of consents (e.g., language in general terms and conditions) will likely not be CASL compliant unless a sender does not need express consent (i.e., can rely on a category of implied consent or a CASL exemption).
Sharing Lists With Third Parties. Consider the potential risks of sharing e-mail or other electronic marketing lists with third parties. While this is certainly possible under CASL, marketers should be aware that there are specific requirements that must be met depending on who a list will be shared with (e.g., to expressly identify third parties with whom consent is being gathered on behalf of, including their contact information and other requirements for unidentified third parties). Marketers should also be aware that there is also potentially not only risk if they themselves violate CASL (e.g., send CEMs without consent), but also if they assist third parties that violate CASL. As such, it is often prudent for marketers that want to share electronic marketing lists with third parties to ensure that they have list sharing agreements in place with parties with whom they share e-mails. For more information, see: Anti-Spam Law (CASL) FAQs, Anti-Spam Law (CASL) Compliance Errors and Canadian Anti-Spam Law (CASL) Precedents. See also: Influencer, Co-Sponsor and List Sharing Agreements.
Sender Identification Information. Ensure that all CEMs include the prescribed sender identification information required by CASL unless an exemption applies. For more information, see: Anti-Spam Law (CASL) and Anti-Spam Law (CASL) FAQs.
Unsubscribe Mechanism. Ensure that all CEMs include a CASL-compliant unsubscribe mechanism. For more information, see: Anti-Spam Law (CASL) and Anti-Spam Law (CASL) FAQs.
Document Consent. Under CASL, the onus is on senders of CEMs to document consent. As such, it is important to document the type of consent (express or implied) or exemption being relied upon, evidence of consent (e.g., subscription logs, forms, dates and names/e-mail addresses), divide lists according to the type of consent or exemption being relied upon and to scrub lists after recipients have unsubscribed or the relevant time period for a category of implied consent has expired (e.g., two years after a purchase). Failure to adequately document consent is another CASL-related compliance error that we regularly see, including not documenting consent at all, not segregating distribution lists and inadequately documenting consents or types of implied consent. For more information, see: Anti-Spam Law (CASL), Anti-Spam Law (CASL) Compliance and Canadian Anti-Spam Law (CASL) Precedents.
CASL Compliance Program. Consider adopting a CASL compliance program, particularly if electronic marketing is a core aspect of your marketing strategy. The CRTC has issued guidance on CASL compliance programs including key recommended elements. For more information, see: Anti-Spam Law (CASL) Compliance and Canadian Anti-Spam Law (CASL) Precedents.
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SERVICES AND CONTACT
We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
