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

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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.

 

 

 

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