Although the date on which Canada's Anti-Spam Legislation (CASL) may
come into force is uncertain, the CRTC has issued two bulletins
that provide guidance as to how to comply with the new law, once
proclaimed in force.
But while some of the new guidance is helpful, other provisions
will likely create significant operational concerns for
The Commission is the body charged with oversight and
enforcement of most provisions of the new law, including the core
provisions respecting commercial electronic messages (CEMs),
alteration of transmission data and the installation of computer
programs. In addition, the CRTC has the power to make
regulations under the Act with respect to certain matters.
The first of the new Compliance and Enforcement
Bulletins provides further, and in some cases helpful, guidance
on the interpretation of these Regulations, such as providing
details on acceptable unsubscribe mechanisms for each of email and
SMS messages, including visual mock-ups of acceptable
However, the Bulletin also indicates that the Commission
considers that, where included in general terms and conditions of
use or sale of a product or service, requests to send commercial
electronic messages, alter transmission data or download computer
programs must be obtained through separate positive affirmations of
the user, such as the proactive checking of a tick-box to signify
consent to each of these actions, in addition to the acceptance of
other contractual terms or an organization's privacy
Most problematically, in a second Compliance and Enforcement Bulletin, the CRTC
seems to be ruling out default settings that favour consent, even
where the user can uncheck a box to exercise their choice (a
process that the Commission refers to as "toggling") and
where the user does provide a positive affirmation to a set of
terms or an agreement. The following example, included in the
Bulletin, shows that even where the pre-checked box and related
consent is featured prominently, and is adjacent to a button that
the user must pressed to signify agreement to a contract, the CRTC
will not consider this to be valid consent to the receipt of CEMs
under the anti-spam law.
Another area of likely concern for businesses relates to CRTC
guidelines respecting the collection of oral consent, a form of
consent which is explicitly authorized by the Electronic Commerce
Protection Regulations (CRTC). The Bulletin suggests that in
order to be able to discharge the onus of proving that it obtained
oral consent, a business would have to have that consent verified
by an independent third party or retain a complete and unedited
audio recording of the consent.
We would note that, while these methods may work where consent
is collected by telephone, through a call centre, they would create
significant operational problems where consent is collected during
a face-to-face interaction, such as might commonly occur at point
While the Bulletins do not have the force of law, they do
provide a clear indication of how the CRTC will interpret the law
and regulations that is charged to enforce.
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.
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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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