October 26, 2022
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 made.
In this regard, one common CASL compliance error that I see is in relation to “friends and family” type promotions. This may include, for example, a promotional contest where entrants are incentivized to share information about the contest for bonus entries or where a company’s staff is encouraged to share information about a promotion with friends and family.
Marketers should be aware, however, that while there is a CASL exception to the unsolicited CEMs section of the legislation (section 6) for messages sent to a person with whom a sender has a personal or family relationship (section 6(5)), these terms are very specifically defined under the CASL regulations.
“Family Relationship”
A “family relationship” under CASL is limited to spouses, common-law partners and parent-child relationships where they have had direct, voluntary, two-way communication.
As such, this exception does not apply to extended family members that do not fall into this definition and there is potential risk for marketers that require or assist senders to send CEMs to individuals that do not fall within the exception.
“Personal Relationship”
“Personal relationship” is defined in a multi-factor and case-by-case fashion, such that it is often impractical to rely on this exception for any broad “friends and family” type promotion.
Factors set out in the regulations for determining whether a “personal relationship” exists include the “sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of the communication, the length of time since the parties communicated or whether the parties have met in person.”
The CRTC also takes the position that it will determine whether this exception applies on a case-by-case basis and that mere social media connections may be insufficient (see, for example, the CRTC’s CASL FAQs). The CRTC’s position is also that it will strictly interpret the definition of “personal relationship” to determine whether this exception applies to “prevent potential abuse” of the exception.
In sum, agencies and marketers need to be aware that there is potential risk in running friends and family type promotions if they cannot satisfy themselves that the specific definitions of “family relationship” and/or “personal relationship” under CASL can be met.
For example, marketers could, depending on the type of promotion, essentially be assisting participants in a promotion violate CASL by encouraging electronic marketing for the promotion to third parties from whom consent has not been obtained and no exception applies.
In this regard, CASL is broad enough for liability for not only the senders of unsolicited CEMs but also those that “aid, induce, procure or cause to be procured the doing of any act” that violates section 6 of CASL (section 9 of CASL).
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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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)
