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 22, 2014
As most, though not all, Canadians now know (and some Americans and international marketers) Canada introduced federal anti-spam legislation on July 1, 2014. As has now been widely written and commented upon since it was first introduced in 2010, CASL is a difficult, complex, unclear and profoundly business unfriendly federal law. As has also been widely stated, CASL is among the most restrictive, if not the most restrictive, anti-spam law in the world.
A single illustration will suffice: one commercial e-mail without consent potentially carries penalties of $1 million (for individuals) or $10 million (for corporations). Or for a more challenging exercise (and there are many within the new law), try decoding the requirements to gather consents on behalf of unidentified third parties – yes it’s permitted, but attempting to determine what is required I assure you makes Dante’s 9 circles of hell in his Inferno look like a kiddie’s playground.
CASL represents central planning at its absolute worst. I’ve been writing on CASL since it was first introduced four years ago and it is still difficult to believe it got passed. Some of the many criticisms of CASL (and there are many, many more) include: (i) an extensive and complex law that is difficult or impossible for many businesses to practically comply with; (ii) many uncertainties and ambiguities regarding CASL’s scope and application; (iii) significant hardship on small and medium sized businesses that rely on electronic marketing for their businesses, including significant compliance and record-keeping obligations; (iv) the existence of practical spam solutions including anti-spam software; (v) the obvious fact that the most egregious sources of spam (i.e., offshore fraudsters and spammers) will not likely be deterred Canada’s new law (not unlike Canada’s federal Do-Not-Call regime); and (vi) the many overreaching aspects of the new legislation, including the fact that Canadian federal legislators deemed it appropriate to enact a baffling express opt-in regime when other jurisdictions such as the U.S. adopted more rational opt-out regimes. The final point alone will likely have (or has already had) a fairly devastating impact on the electronic marketing efforts and lists of companies of all sizes both in Canada, as well as international companies/individuals marketing to Canadians.
In short, in my humble view, this new law represents staggering overreach by regulators, is unnecessary due to basic tech solutions and it seems to me most importantly, the law illustrates a serious and profound disconnect between federal legislators and regulators on the one hand and the realities of Canadian businesses (and their need to market to effectively compete) on the other.
Perhaps my three greatest annoyances with CASL are as follows: first, the serious issues that the federal government has claimed arise from spam (at least the unsolicited marketing bit of the new law) are easily remedied by a good spam filter and could have been approached with a simple opt-out approach; second, it seems highly difficult to see how this cumbersome, complex and largely opaque law will not have a chilling effect on commercial communications in general and a variety of existing and developing social and other digital media and technology (in this respect I have already had, as I’m sure has been the case with numerous other counsel, several significant challenges attempting to apply the new law to clients’ start-ups and new technology); and third, the administrative regimes and legal frameworks that have been assembled to deal with what is really a relatively minor issue (and one that is largely as I say already curable through technology or a far less heavy-handed approach) is nothing less than breathtaking.
Truly astonishing overcompensation by regulators with seemingly no comprehension of the realities of small and medium sized businesses and their need to market to promote and grow their businesses.
One glib regulator’s statement when the law was coming into force, which I still remember, shows the full force of the government’s disconnect with the challenges small and medium sized business face: “The small business lens does not apply to this proposal as the Regulations would not increase administrative or compliance burden on small business”. A federal law that has required every Canadian business and any business or individual marketing into Canada regardless of size of scope to re-engineer any unsolicited electronic marketing to comply CASL does not “increase the compliance burden” on small businesses. An astonishingly ill-informed statement, which is consistent with the blindness, overreaching and heavy handed nature of the new law overall.
On the topic of completely disproportionate regulatory regimes, currently there are three regulators to administer and enforce CASL (CRTC, Privacy Commissioner and Competition Bureau), three sets of associated regulatory personnel, one set of legislation, two sets of Regulations, several sets of CRTC guidelines, an Industry Canada Regulatory Impact Statement, CRTC FAQs, CRTC compliance videos, several federal government websites, a website to report and capture spam, and a small army (apparently according to the CRTC’s enforcement glee) of IT and other experts adept at tracking down spam ill-doers.
I literally must take a breath and pause after this list – but it is necessary to illustrate the profound regulatory overcompensation for, um, yes spam. Not to mention what all of this regulatory infrastructure is costing Canadians for the regulation and Canadian businesses attempting to comply.
All for a problem that can be cured – yes I’ll say it again – with anti-spam software or a nice “opt-out” approach. To this thicket of regulation run seriously amok there will be added in subsequent years more guidelines, FAQs, case law, doubtless more regulatory personnel yet added in the three responsible agencies and eventually, when the final CASL provisions come into force in 2017, potential class action litigation (with the resulting class case law).
Having watched the mounting criticism of this highly ill-conceived federal law over the past four years – it was first introduced in 2010 and seemed for awhile as though it might be allowed to slip quietly away – it seems to me that opposition to the law must now take the form of a more vigorous and widespread effort to repeal it.
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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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I am a Toronto competition and advertising lawyer offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. I also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
My experience includes advising clients in Toronto, Canada and the US on the application of Canadian competition and regulatory laws and I 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, pricing and distribution, Investment Canada Act and merger matters. For more information about my 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)
