Canadian COMPETITION LAW

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 for commercial electronic messages (CEMs), unsubscribe mechanisms for CEMs, business related CASL exemptions and types of implied consent and documenting consent and scrubbing electronic distribution lists.  We also offer a template CASL corporate compliance program that includes the CRTC’s recommendations for CASL compliance.

For more information and to order, see: CASL Compliance Precedents and Forms. If you would like to discuss CASL legal advice or other Canadian advertising or marketing law advice, including contests/sweepstakes, contact us: Contact.

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OVERVIEW OF CASL (CANADIAN ANTI-SPAM LAW)

In 2014, Canada’s federal anti-spam law (CASL) came into force. In general, CASL requires express or implied consent to send Canadians “commercial electronic messages” (CEMs) and also imposes sender identification and opt-out (i.e., unsubscribe) requirements for CEMs.

CASL impacts individuals, companies and other organizations that engage in electronic marketing, including e-mail, text messaging, instant messaging and some types of social media marketing (e.g., where messages are sent to electronic addresses, such as via social media platforms’ messaging services).

Violation of CASL may result in significant penalties of up to $1 million (for individuals) and $10 million (for corporations). As such, it is important for electronic marketers to ensure that they comply with CASL’s consent, sender identification and unsubscribe requirements (as well as CASL compliance, including documenting consent).

Canada’s federal anti-spam legislation (CASL) is also often relevant when running contests or other types of promotions in Canada, including if electronic distribution lists will be used to market the contest/promotion, the contest/promotion will include the collection of e-mails for marketing unrelated to administration of the promotion, if participants’ e-mail addresses will be shared with third parties (e.g., related entities or affiliate marketers) or participants are encouraged or required to “share” information about the contest/promotion with friends or family (e.g., to receive bonus entries in a contest).

For more information about CASL, see: CASL, CASL Compliance , CASL Compliance Tips, CASL FAQs, CASL Compliance Errors and Contests and CASL.

For more Canadian competition/antitrust, advertising/marketing, CASL (anti-spam) and contest law terms and phrases, see: Competition Law Terms, Advertising Law Terms, CASL Law Terms – A-M, Contest Law Terms – A-C, Contest Law Terms – D-H, Contest Law Terms – I-M, Contest Law Terms – N-S and Contest Law Terms – T-Z.

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CASL TERMS (N-Z)

The following are some key CASL (Canadian federal anti-spam legislation) related terms (N-Z)

Notice of violation (NOV).

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “[A notice of violation is] a notice served on an entity if it is believed on reasonable grounds that the entity has committed a violation. It may be accompanied by an administrative monetary penalty (additional information is available in section 22 of CASL).”

Notice to produce.

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A notice served on a person requiring them to produce data, information or documents in their possession or control (additional information is available in section 17 of CASL).”

Oral consent.

In general, Canada’s federal anti-spam legislation (CASL) requires that senders of unsolicited commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies.

Express consent can be gathered from recipients under CASL either in writing or orally. Written consent may include both paper and electronic forms (examples of the latter include a box on a web page or filling out a consent form at point-of-purchase).

The CRTC’s view is that oral consent is sufficient if: (i) it can be verified by an independent third party; or (ii) where there is a complete and unedited audio recording of the consent. In either case, the onus is on the sender to prove that they had consent to send CEMs.

It is important for electronic marketers to carefully review the requirements for each type of consent (whether express or implied) or exemption under CASL, as CASL sets out very specific requirements for each.

Personal relationship.

In general, Canada’s federal anti-spam legislation (CASL) requires that senders of unsolicited commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies.

CASL contains an exception to the unsolicited CEMs section of CASL (section 6) for messages sent to a person with whom the sender has a personal relationship. “Personal relationship” is defined in the regulations under CASL in a multi-factor and case-by-case fashion, such that it is often impractical to rely on this exception for some types of promotions (e.g., “friends and family” type promotions).

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A ‘personal relationship’ requires that the real identity of the individual who alleges a personal relationship is known by the other individual involved in such a relationship (as opposed to instances where a virtual identity or an alias is used). Using social media or sharing the same network does not necessarily reveal a personal relationship between individuals. The mere use of buttons available on social media websites – such as clicking ‘like’, voting for or against a link or post, accepting someone as a ‘Friend’, or clicking ‘Follow’ – will generally be insufficient to constitute a personal relationship. Relevant factors for determining whether a personal relationship exists includes the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated or whether the parties have met in person.”

It is important for electronic marketers to carefully review the requirements for each type of implied consent and exemption under CASL.

Preservation demand.

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A demand served on a telecommunications service provider requiring it to preserve transmission data in that is in or comes into its possession or control (additional information is available in section 15 of CASL).”

Search warrant.

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A judicially pre-authorized warrant that authorizes designated persons to enter a place (business or dwelling-house) to examine, copy or remove documents or things (additional information is available in section 19 of CASL).”

Sender identification information.

Under Canada’s federal anti-spam legislation, the following information must be clearly and prominently included in commercial electronic messages (CEMs) that are subject to CASL: (i) the name (or DBA name if different) of the sender; (ii) if a CEM is sent on behalf of other person (e.g., affiliate or third party), their name (or DBA name if different); (iii) if a CEM is sent on behalf of another person, state which person is sending the message and on whose behalf it is being sent; (iv) the mailing address (which must be valid for a minimum of 60 days after the CEM is sent) and at least one of the following for the sender or, if different, the person on whose behalf it is sent: phone number, e-mail address or web address (which can be provided in the CEM itself or via a web link); and (v) a conspicuously posted un-subscribe mechanism.

Similar account.

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “CASL applies to CEMs sent to an electronic address. An electronic address is defined in CASL as being: a. an email account; b. an instant messaging account; c. a telephone account; or d. any similar account. Some social media accounts may constitute a ‘similar account’ under the definition of ‘electronic address.’ Therefore, whether communication using social media fits the definition of ‘electronic address’ and is captured by CASL must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. In general, CASL does not apply to the one-way general broadcast of a commercial message on social media. For example, this could include the general broadcasting of tweets on Twitter. However, messages sent directly to users through a social media closed two-way direct messaging system, would qualify as sending messages to ‘electronic addresses’ and CASL would apply.”

Sought separately.

Section 4 of the Electronic Commerce Protection Regulations under CASL requires that express consent be sought separately for each of the following acts: the sending of commercial electronic messages (CEMs) (section 6 of CASL), the alteration of transmission data in electronic messages in the course of a commercial activity (section 7 of CASL) and the installation of a computer program on another person’s computer in the course of a commercial activity (section 8 of CASL).

CRTC, Compliance and Enforcement Information Bulletin CRTC 2012-548: “The Commission considers that in order to meet the requirement of seeking consent separately, the person seeking consent must identify and obtain specific and separate consent for each act contemplated by the sections of the Act described in paragraph 13 above. Accordingly, consent for each act above must be sought separately from any other act captured by sections 6 to 8 of the Act. The Commission also considers that the activities captured by each of the above acts are distinct, as are the consequences. For example, the Commission considers that persons must be able to grant their consent for the installation of a computer program while refusing to grant their consent for receiving CEMs. However, the Commission does not consider it necessary for consent to be sought separately for each instance of the acts listed in paragraph 13 above, as long as the consent request is in accordance with subsections 10(1), 10(2), 10(3), and 10(4) of the Act, where applicable.”

Toggling.

Under Canada’s federal anti-spam legislation (CASL), express opt-in consent is generally required to send recipients commercial electronic messages (e.g., marketing e-mails), unless the sender of the CEMs can rely on one of the types of implied consent under CASL or a CASL exception. When requesting consent to send CEMs, one method to request consent is to use an online check box. In this regard, “toggling” refers to the process of checking or unchecking a check box to either provide consent (by checking an unchecked box) or withdraw consent (by unchecking a pre-checked box).

Compliance and Enforcement Information Bulletin CRTC 2012-549: Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation: “4. The Commission notes that toggling is a means of switching from one state to another. The Commission also notes that toggling has been used as an opt-out consent mechanism when the default toggle state assumes consent on the part of a person. A common example of such toggling is a pre-checked box on a website. The pre-checked box puts the onus on the person whose consent is being sought to take action in order to indicate that he or she does not consent, generally by unchecking the box. Consequently, inaction on the part of the person whose consent is being sought is considered to be equivalent to that person’s consent.

5. The Commission considers that in order to comply with the express consent provisions under [CASL], a positive or explicit indication of consent is required. Accordingly, express consent cannot be obtained through opt-out consent mechanisms.

6. The Commission therefore considers that a default toggling state that assumes consent cannot be used as a means of obtaining express consent under the Act for the purposes of sending CEMs [paragraph 6(1)(a)], altering transmission data in electronic messages in the course of a commercial activity (e.g. network re-routing) [paragraph 7(1)(a)], or installing a computer program on another person’s computer in the course of a commercial activity [paragraph 8(1)(a)].”

Undertaking.

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “[An undertaking is] an agreement defining compliance obligations to be put in place following an alleged contravention of CASL, and may include a provision to pay a specified amount (additional information is available in section 21 of CASL).”

Unsubscribe mechanism.

In addition to consent and identification requirements, Canada’s federal anti-spam legislation (CASL) also requires that commercial electronic messages (CEMs) include an easy unsubscribe mechanism.

The specific requirements for a CASL-compliant unsubscribe include: (i) CEMs must include an unsubscribe mechanism; (ii) the unsubscribe mechanism must be set out clearly and prominently; (iii) the unsubscribe mechanism specifies and electronic address or web link where the unsubscribe request can be made (links must be valid for a minimum of 60 days after the message is sent); (iv) for SMS messages, users can choose between replying “STOP” or “Unsubscribe” or by clicking a link to a web page to unsubscribe from some or all messages; (v) recipients can unsubscribe by clicking a link or via a web page where they are given options for unsubscribing from some or all messages; (vi) recipients that request to be unsubscribed are unsubscribed within 10 business days; and (vii) the unsubscribe mechanism can be readily performed and is simple, quick and easy.

Warning letter.

CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “[A warning letter] informs a person that Commission staff have concerns with respect to possible violations of CASL (e.g. due to complaints received), educates about CASL obligations, and encourages auto-corrective action (if warranted).”

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For more information about CASL, see: CASL, CASL Compliance , CASL Compliance Tips, CASL FAQs, CASL Compliance Errors and Contests and CASL.

For CASL compliance checklists and precedents that we offer for sale, see: 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, 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.

To contact us about a potential legal matter, see: contact

For more information about our firm, visit our website: Competitionlawyer.ca