March 25, 2023
CASL (FEDERAL ANTI-SPAM LAW)
COMPLIANCE PRECEDENTS AND CHECKLISTS
Do you need CASL precedents or checklists
to comply with Canadian anti-spam law?
In addition to our legal services, we offer lawyer-prepared CASL compliance precedents and checklists that identify key consent, disclosure and other requirements to send commercial electronic messages (CEMs) to Canadians and provide checklists and templates to comply with CASL.
Our compliance precedents and checklists are an excellent way to mitigate risk and avoid common CASL-related issues, including relating to express consent requests, sender identification information for CEMs, CASL-compliant unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a template CASL corporate compliance program based on the Canadian CRTC’s CASL compliance program recommendations.
All of our Canadian CASL compliance precedents and checklists include practical overviews of each of the relevant requirements, compliance checklists and guidance how to use them.
Our CASL compliance checklists and precedents are Word version documents with PayPal checkout and credit card payment options.
For more information and to order see: CASL Compliance Checklists and Precedents.
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COMMON CASL (CANADIAN ANTI-SPAM LAW) COMPLIANCE ERRORS:
RELYING ON OLD (AGGREGATED) MARKETING LISTS
Canada’s federal anti-spam legislation (CASL) came into force in 2014. Since then, marketers and their advisors have been working to comply with what remains a complex law with outstanding uncertainties in some key areas. In providing CASL advice to clients since CASL came into force, and even over the past several years, I have regularly seen some of the same compliance errors being repeatedly made.
In this regard, one of the most common CASL compliance errors I see are issues relating to relying on old and often aggregated (i.e., combined) marketing lists.
In this regard, it is not uncommon for clients to tell us that they are using an old (sometimes pre-CASL) distribution list and that they are not sure whether or how any express or implied consents were gathered. Commonly, such lists are not regularly reviewed or scrubbed of names where consent to send electronic messages no longer exists or a CASL exemption no longer applies.
In general, there is certainly potential CASL-related risk in relying on old distribution lists where it is not known whether any valid CASL consent has been obtained or any prescribed exemption applies.
In this regard, while CASL does allow for either express consent as well as a number of types of implied consent, for both express consent and the various types of implied consents under the legislation there are specific requirements that must be complied with.
For example, express consent requests must include prescribed sender identification information set out under CASL and its regulations.
Similarly, for each type of implied consent and exemption under CASL, including the existing business relationship types of implied consent, the so-called “business card” category of implied consent, “conspicuous publication” implied consent and the business-to-business exemption, there are specific multi-part tests that must be met and documented for each.
For example, for the “conspicuous publication” category of implied consent, (i.e., for published e-mail or other electronic addresses) it is not sufficient that an e-mail address was posted on the web. For this type of implied consent, a three-part test must be met for each e-mail address as follows: (i) the e-mail address was posted on the web or otherwise published; (ii) there is no statement that the recipient does not wish to receive unsolicited electronic messages; and (iii) the message is relevant to the recipient’s “business, role, functions or duties in a business or official capacity.”
Based on the above, marketing lists should be divided into the type(s) of express or implied consent obtained (or relevant CASL exemption) and addresses removed when either the relevant type of consent or exemption has expired / is no longer relevant or recipients have unsubscribed.
In the case of old distribution lists where it is unknown if any type of express or implied consent was obtained and are not structured as discussed above and regularly reviewed and scrubbed to remove recipients’ names where neither consent nor an exemption still applies there is clear risk for marketers.
For more information about CASL, see: Canadian Anti-Spam Law (CASL), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors and CASL FAQs.
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CASL (CANADIAN ANTI-SPAM LAW) COMPLIANCE TIPS
For tips to comply with Canada’s federal anti-spam legislation (CASL), see: CASL Compliance Tips.
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SERVICES AND CONTACT
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Our experience includes advising clients in Toronto, 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)
