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As many of us now know, Canada's Anti-Spam Law is now
expected to enter into force in 2013. Don't expect things to
sit idle until then, however.
3 Next Steps for CASL in 2012
Following are three next steps for 2012, ranked in order of
importance to industry stakeholders:
1. Industry Canada to issue new set of regulations for
comment
As we noted in previous posts
here and
here, while businesses had hoped that regulations would clarify
key terms and obligations under the Act, and lessen the Act's
impact on certain types of communications, many stakeholders were
disappointed. Many businesses considered that neither the Industry
Canada regulations as originally published for
comment, nor the CRTC regulations as finalized, went far enough to
clarify obligations. Moreover, neither set of regulations provided
the exemptions many businesses have called for, to exclude certain
categories or types of messages from the application of CASL
consent requirements.
A glimmer of hope is in sight: Industry Canada is expected to
publish a new set of regulations for comment in the coming weeks.
These regulations are expected to contain some exemptions from the
application of CASL requirements. In the comment period, businesses
will have the opportunity to comment on the regulations, and seek
further changes to make CASL more workable.
2. CRTC to issue a series of information bulletins for
industry
Anyone who has tried to read through CASL's provisions and
the accompanying CRTC regulations knows that they tend to raise at
least as many questions as they answer. The CRTC is expected to
issue information bulletins in the coming weeks to help clarify
what is meant, and required, by some key elements of the
regulations. These bulletins may include matters relating to what
it means to get consent "in writing" online, and how far
businesses must go to make information accessible in
"commercial electronic messages".
3. Spam Reporting Centre
The government is currently reviewing bids by third-party
service providers to operate the The Spam Reporting Centre. The
Centre will act as a liaison between the public and the government
agencies (CRTC, Office of the Privacy Commissioner, Competition
Bureau) on spam complaints and monitoring. The government states
that:
"When operational, the Spam
Reporting Centre will accept various types of electronic messages
from individuals and organizations in Canada. Reporting spam and
related electronic threats will not stop such threats completely;
however, the data sent to the Spam Reporting Centre will help it
identify trends, and try to find out who is sending the spam and
other threats and from where. This will aid in the future
prosecution and civil proceedings against those responsible for
electronic threats in Canada and internationally."
The final line of the above quote – "future
prosecution and civil proceedings", and "threats in
Canada and internationally" – is a stark
reminder of two important points.
First, the government means business. Its objective is to
"drive spammers out of Canada" (then Minister of Industry
Tony Clement, 2010). Second, CASL is designed to reach beyond
Canada. It is designed to capture commercial electronic messages
that may be sent from other countries, and also to provide the
framework for international monitoring and enforcement.
3 Things to do while you "wait" for CASL in
2013:
Participate in the comment process on the coming draft Industry
Canada regulations
It's strongly recommended that businesses use the
lead time before CASL's entry into force to get their
operations in order. Prepare your organization's CASL
audit, checklist, and Compliance Policy. The CAN-SPAM vs. CASL presentation and an earlier article of ours can help explain the
basics.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
www.fmc-law.com
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