January 26, 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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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 regularly see some of the same compliance errors being repeated.
In this regard, one of the most common CASL compliance errors I see is in relation to attempts to gather consent to send commercial electronic messages (CEMs) through different types of passive consent (i.e., non-express consent or implied consent that does not comply with CASL).
While CASL does allow marketers to rely on a range of different types of implied consents, in addition to express consent and exemptions from the requirements of section 6 altogether (the consent, sender identification and unsubscribe provision of CASL), each type of implied consent set out under CASL has different specific requirements.
As such, it is not sufficient, for example, to merely include a statement in online terms of use, contest rules or other types of terms governing marketing to Canadians that recipients agree to receive unsolicited CEMs.
If a sender does not have express consent, as set out under CASL, or cannot rely on a CASL exemption, then they must be able to meet the specific test for the type of implied consent(s) they are relying on as set out under CASL or its regulations. In this regard, each type of implied consent under CASL has a different test (and compliance checklists can be very helpful in complying with them).
To put it another way, merely including some passive language in online terms of use, contest rules or other terms with consumers purporting to gather consent for Canadians to agree to receive CEMs is insufficient to meet the implied consent requirements of CASL unless a specific category of implied consent (or multiple types) is met under the legislation.
Given the potentially severe penalties for violating CASL, which includes administrative monetary penalties of up to CDN $10 million, it is important for marketers to ensure that they have either express or implied consent as set out under CASL or can rely on one of CASL’s exemptions before sending CEMs to Canadians.
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
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, 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)
