Canada's Anti-Spam Legislation (CASL), is expected to be declared in force towards the end of 2012, or early in 2013. CASL will create a regulatory system to govern most forms of commercial electronic messages sent to Canadians, including email, text messages and messages sent via social media (CEMs). Under CASL, it will be necessary to have either express or implied consent to send such CEMs. An unsubscribe mechanism complying with the statutory and regulatory requirements will be required, and the message itself will be required to make prescribed informational disclosures.
With hefty new penalties for sending commercial electronic communications without the consent of the recipient, including a maximum fine of $10 million, marketers and advertisers should be turning their thoughts to compliance now. As detailed in a previous AdBytes Alert, the Canadian Radio-television and Telecommunications Commission (CRTC) has published final regulations detailing the disclosure requirements that will apply to requesting express consent to send CEMs, and the information that will need to be included in the messages themselves. In the coming months, Industry Canada is expected to release revised regulations specifying the extent of the "friends and family" exception, and the uses that can be made of consent obtained on behalf of an unknown third party.
Preparing to Comply with CASL
CASL will seriously limit the ability to rely on "implied" consent to send CEMs. For most marketing purposes, implied consent will exist in cases where the marketer is able to establish that they have an "existing business relationship" with the recipient of the message. An "existing business relationship" will be deemed to exist for two years after the consumer makes a purchase from the person who sends the message, and for six months following an inquiry or application from the consumer to the person who sends the CEM. Despite these definitions, there will be a three-year transition period (from the date on which CASL comes into force) over which businesses may continue to rely on implied consent to send CEMs to persons with whom they have an existing business relationship that already includes the sending of electronic messages. In such cases, the recipient is still permitted to withdraw their consent at any time.
Apart from this exception, when CASL comes into force, it will require many businesses to reconsider their existing consent lists for electronic marketing, and to ensure that future requests for consent and CEMs are in compliance with the legislative requirements. Businesses involved in electronic marketing should consider the following practices in preparation for CASL:
- Review your existing consents to contact consumers. Existing express consent will survive the coming into force of CASL; however, the onus of proving consent will be placed on the sender of the message. If you cannot establish express consent for the names on your list, there may be no choice but to purge the list or to seek additional express consent.
- Seek additional express consents to electronic marketing before CASL comes into force.
- Review the manner in which you are seeking express consent to ensure you are prepared to comply with CASL after it comes into force. Retain an accurate list of the consents you receive, and scrub the list to remove persons who have withdrawn their consent.
- Review your procedures for maintaining an accurate and current list of the consumers for whom you can establish implied consent through an existing business relationship. The ability to rely on implied consent will be much narrower under CASL than under current legislation.
- Review the categories of CEMs you distribute to identify those that fall within exceptions to the consent requirements. Exceptions are available for messages that solely: complete, facilitate or confirm a commercial transaction, provide warranty or recall information, or provide a quote or estimate in response to a request.
- After CASL comes into force, ensure your CEMs provide the prescribed information and contain a functional unsubscribe mechanism.
- Ensure you are able to honour unsubscribe requests within 10 business days.
- Establish a CASL compliance policy to ensure that the classes of CEMs you send are in compliance with CASL. A defence is available to persons who can establish they exercised "due diligence" to prevent violations.
- Prepare standard opt-in and CEM templates that are CASL compliant and distribute them to all staff and third-party agencies for use in various forms of electronic marketing.
- Train any staff and third-party agencies involved in the dissemination of CEMs to comply with CASL and your compliance policy. Inform them of the consequences for failing to comply.
- In obtaining marketing lists from third-party providers, review the contract to ensure it contains a representation and warranty that the list was assembled in compliance with CASL and that the provider will maintain the list in compliance with all CASL requirements, including those pertaining to the withdrawal of consent. Maintain such lists separately from your own express consent list.
- If you outsource electronic marketing to a third party, review and update your services contract to ensure it requires compliance with CASL.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.