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This is part 2 of a two-part series on Canada’s New Anti-Spam Law (CASL)

CASL image 2

Implied vs. express consent

The law defines two types of consent: implied and express. Implied consent is a looser interpretation, whereas express consent requires action from both sender and recipient.

Implied consent includes when:

  • A recipient has purchased a product, service or made another business deal, contract, or membership with your organization in the last 24 months;
  • You are a registered charity or political organization, and the recipient has made a donation or gift, has volunteered, or attended a meeting organized by you; or
  • A professional message is sent to someone whose email address was given to you, or is conspicuously published, and who hasn’t published or told you that they don’t want unsolicited messages.

If your recipients don’t meet any of the above criteria, then express consent is required before you can send campaigns to them.

Express consent means written or oral agreement to receive specific types of messages, for example “You want to receive monthly newsletters and weekly discount notifications from Company B.”

Express consent is only valid if the following information is included with your request for consent:

  • A clear and concise description of your purpose in obtaining consent
  • A description of messages you’ll be sending
  • Requestor’s name and contact information (physical mailing address and telephone number, email address, or website URL)
  • A statement that the recipient may unsubscribe at any time.

The requestor can be you or someone for whom you’re asking. If you’re requesting consent on behalf of a client, the client’s name and contact information must be included with the consent request.

During the transition period, July 1, 2014-July 1, 2017, you may continue to send messages to recipients from whom you have implied consent, unless they unsubscribe. After the 2017 cut-off date, you may only send to recipients with express consent or whose implied consent is currently valid under CASL—that is, 24 months after a purchase or six months after an inquiry.

 

Additional requirements

In addition to understanding what qualifies as CASL-regulated message, and what type of consent is needed, there are a few other details to keep in mind.

  • You must retain a record of consent confirmations.
  • When requesting consent, checkboxes cannot be pre-filled to suggest consent. Each subscriber must check the box themselves for consent to be valid.
  • All messages sent must include your name, the person on whose behalf you are sending (if any), your physical mailing address and your telephone number, email address, or website URL.
  • All messages sent after consent must also include an unsubscribe mechanism, and unsubscribe requests must be processed within 10 days.

Stiff Penalties for Non-Compliance

There are new consequences for spammers, including fines of $1M for individuals and $10M for corporations per violation. It’s important to note that individuals and companies, including directors, officers and other agents, are responsible and liable for the messages they send.

Beyond SPAM

In addition to the traditional SPAM referenced above, the new CASL rules will impose a consent requirement for installation of a computer program on any other person’s PC, smart phone or other computer-based device. Whether the program is installed for a malicious or to commit fraud is not relevant. Technically this means that virtually every business that operates a website, sells or provides mobile applications, or incorporates any kind of software into their products or otherwise make software available to customers will need to review and likely modify their current practices for installing software, and implement and track proof of compliance. For example, using a virtual meeting program to conduct a demonstration or review a proposal, where the user is required to download a piece of software onto their PCs or other device, will constitute a circumstance where proof of audit and compliance is necessary.

 

 

 

Note: LVS provides this article as a resource, based on currently available and published information on this topic, but it should not nor does it constitute legal advice. If you have more questions about CASL, we encourage you to contact an attorney in your area who is familiar with this issue.

 

 


This is part 1 of  two-part series on Canada’s New Anti-Spam Law (CASL).

On July 1, 2014, Canada’s Anti-Spam Law (aka CASL) came into effect. Law firms and other companies that do business with Canadian companies need to understand the impact of these new regulations, or face big fines for non-compliance. LVS offers the following insights for our clients’ consideration:

CASL imageWhat is CASL? CASL (pronounced “Castle”) is the implementation of a new set of regulations, and subsequent penalties for non-compliance, by the Canadian Government. There is a transition phase which began on July 1, 2014, and continues until July 1, 2017.During the transitional period, the Canadian Radio-Television and Telecommunications Commission (CRTC), the Competition Bureau, and the Office of the Privacy Commissioner of Canada, may investigate and litigate against entities that don’t adhere to CASL. After July 1, 2017, any individual will also be able to sue any entity they believe is sending spam messages.   On face value, one might think that only predatory “spammers” need to be concerned about the implications of Canada’s latest anti-spam legislation. However, it is much further reaching than its friendly-sounding name would imply. In fact, it goes much further than just regulating bulk, unsolicited email communications most of us consider as “spam”. Instead, it creates an express (opt-in) consent-based set of rules that will apply to almost all electronic messages sent for a commercial purpose.

What kinds of messages fall under the CASL regulation? The regulations apply to any “Commercial Electronic Message” (CEM) sent from or to Canadian computers and devices in Canada. Messages routed through Canadian computer systems are not subject to this law. A CEM is any message that:

  • Is in an electronic format, including emails, instant messages, text messages, and some social media communications;
  • Is sent to an electronic address, including email addresses, instant message accounts, phone accounts, and social media accounts; and
  • Contains a message encouraging recipients to take part in some type of commercial activity, including the promotion of products, services, people/personas, companies, or organizations.

These types of electronic messages are exempt from CASL for various reasons.

  • Messages to family or a person with established personal relationship.
  • Messages to an employee, consultant, or person associated with your business.
  • Responses to a current customer, or someone who has inquired in the last six months.
  • Messages that will be opened or accessed in a foreign country, including the U.S., China, and most of Europe.
  • Messages sent on behalf of a charity or political organization for the purposes of raising funds or soliciting contributions.
  • Messages attempting to enforce a legal right or court order.
  • Messages that provide warranty, recall, safety, or security information about a product or service purchased by the recipient.
  • Messages that provide information about a purchase, subscription, membership, account, loan, or other ongoing relationship, including delivery of product updates or upgrades.
  • A single message to a recipient without an existing relationship on the basis of a referral. The full name of the referring person must be disclosed in the message. The referrer may be family or have another relationship with the person to whom you’re sending.

If your message does not meet one of these criteria, consent is required under CASL.


It’s December, Typically a Quiet Time in Our Business

Author: Cathy Kenton
December 8, 2013

In all of the years that I’ve worked in the legal industry, I’ve repeatedly heard how slow business is in December. While nobody likes a party or down-time more than me, I’ve found December presents a few unique opportunities:

1. Take Advantage of the Impulse Buy – If your product or service is appropriate for impulse buyers, develop an offer that takes advantage of end of year-end tax spending. Small firms often look to increase deductions at this time of the year. Create a special offer that expires before December 31st and send it to all of your unconverted leads. You just might be surprised at the uptick in sales.

2. Its Not Too Late to Plan – If you’ve been too busy to worry about a ‘plan’ for next year, now’s the perfect time. With the activity slowdown, this is an excellent opportunity to get some quiet, thinking time. Start big, with your overall goals, and ask yourself this question “what does success in 2014 look like?” Once you’ve got that answer, start breaking it down into the pieces and the timing. Whether you’re starting with revenue, users, clients, or income per customer/client, identify the goal and then work backwards to incorporate milestones and build your plan. Write it down…if the plan exists only in your head, the chances of success are significantly reduced.

3. Learn Something New/Do Something New – Social marketing is more than just buzz. Failure to incorporate a social strategy into your marketing program is certain to result in a negative impact on your business in 2014. But where to start? A website update, a blog, SEO, Facebook, Twitter, and LinkedIn are all viable options. Pick one…they each have their own strengths…and commit to it. Incorporate it into your plan and set aside some time to learn the benefits and figure out how to make it work for you. There’s a wealth of information (much of it free) online to help you get started.

At this point it isn’t what you do that’s important…it’s doing something! Use your ‘down-time’ wisely and when next December comes around, you’ll appreciate the results. That’s how I’m planning to spend my December slow-down.