Industry members concerned with how Canada's new anti-spam Law (CASL) will affect their business may find some comfort in the revised Electronic Commerce Protection Regulations (the Regulations) that were recently released by the CRTC.
CASL is a comprehensive piece of legislation designed to regulate a variety of "spam-related' communications and programs, such as e-mails and computer programs. Often called the "strictest anti-spam law in the world," CASL was originally expected to come into force early this year. However, CASL relies heavily on its regulations to set out the details on how many of its provisions must be implemented, and delays in implementing these regulations mean CASL will likely not be in force until early 2013. Initially released in mid-2011, the regulations issued by both the CRTC and Industry Canada were widely criticized by industry stakeholders and underwent a lengthy period of consultation and revision. Recently, the CRTC released its revised Regulations, and it is expected that Industry Canada will release their revised regulations soon.
The CRTC Regulations address the requirements surrounding consent, the provision of contact information and unsubscribe mechanisms, as well as the process involved in obtaining consent when a computer program performs one of the functions regulated by CASL. When initially issued, many in industry expressed concern that the Regulations generally failed to consider the reality of how many businesses engage in e-commerce and were overly restrictive. Although in much the same form as the original, the revised Regulations do contain some important modifications and are generally viewed as an improvement. Business should be aware of the following changes:
- Consent to receive a commercial electronic message may now be obtained either orally or in writing. Electronic forms of consent are also acceptable. Originally, consent had to be obtained in writing.
- A statement that consent may be withdrawn must still be included when seeking consent, but how consent can be withdrawn does not have to be specifically set out.
- The revised Regulations reduce the amount of contact information that a person sending a commercial electronic message is required to include. Now, only one of a telephone number providing access to an agent or a voice messaging system, an email address or web address of the person sending the message, along with a mailing address, must be provided. The Regulations also allow for some of this information to be posted on the World Wide Web if it is not practicable to include it in the commercial electronic message along with the unsubscribe mechanism. Whereas previously this information had to be accessible "by a single click or another method of equivalent efficiency," now the Regulations specify it simply must be "readily accessible."
- Persons must identify themselves by the name under which they carry on business. This was not made clear in the original Regulations.
- Previously, the Regulations required an unsubscribe mechanism to function with a certain number of "clicks." This has been revised so that an unsubscribe mechanism must be able to be "readily performed."
Once in force, CASL will significantly alter how businesses may communicate with their customers electronically or provide electronic products such as computer programs. Businesses should take advantage of this time before CASL comes into force to ensure their policies and practices are CASL compliant, and avoid the stiff fines and other serious penalties that may result from contravening CASL provisions in future.
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