The Canadian Radio-television and Telecommunications Commission
(CRTC) is gearing up for Canada's anti-spam legislation (CASL),
which is expected to come into force sometime in 2013. The CRTC,
charged with most of the oversight of the new act, released two
Bulletins that provide guidance on sending commercial electronic
messages, including emails and text messages (e-messages):
Express Consent Mandatory (Pre-Checked Boxes No Longer
CASL generally requires express consent to send e-messages,
alter transmission data, and install and update computer programs.
There are a few limited exceptions where consent will be implied.
For example, emails can be sent if the sender and receiver had a
business relationship within the last two years.
The common practice of pre-checking boxes can no longer be relied
on to obtain express consent to send e-messages in Canada. The CRTC
guidelines state that the consumer must do something to explicitly
indicate their consent. Default opt-in consent will not be
sufficient. For example, if a default toggle (selection option)
assumes consent by pre-checking a box or auto-filling in an email
address, the CRTC considers there to be no express consent. Also, a
subscription email, text message, or equivalent cannot be used to
elicit express consent. So, businesses will need to take advantage
of the limited other opportunities to elicit express consent, like
sign-up pages and customers calling in for support.
Requests for consent must clearly and simply identify the
purposes for which the consent to send e-messages is being sought,
and the person(s) seeking consent, along with their contact
Separate consent must be sought for (i) sending e-messages, (ii)
altering transmission data, and (iii) installing computer programs.
This means that consent requests cannot be bundled. For example, a
customer must be able to consent to the installation of a computer
program but not consent to receiving e-messages. It also means that
consent requests must stand alone, and cannot, for example, be
bundled in with a request that a user accept general terms and
It is important for businesses to maintain records of express
consent. If consent is obtained electronically, there should be a
record of the date, time, purpose, and manner of that consent
stored in a database.
The CRTC has clarified that consent can be obtained orally
provided it can be verified by an independent third party, or there
is a complete and unedited recording of the consent that is
Content of E-messages: Identity, Contact Information,
and Unsubscribe Mechanisms
Identify the sender and the person(s) on whose behalf the
message is being sent, if different. Intermediaries do not need to
be identified (e.g., third party service providers who facilitate
the distribution of the e-message, but do not have any role in its
content). However, all entities on whose behalf an e-message is
sent must be identified, including affiliates.
Include the contact information of the sender, or the person on
whose behalf the e-message is sent, if different.
Contain an opt-out mechanism that can be "readily
performed" (i.e., accessible without delay) and simple for
consumers to use.
If it is not practicable for the e-message itself to contain the
above three elements, a link to a readily and freely accessible
webpage that clearly and prominently sets out the information and
opt-out mechanism can be included in the e-message.
Some are suggesting that the implications of these new
requirements are vast. Most email subscription services presume
consent in their toggle selections. Popular e-message senders, such
as FabFind and Groupon, may now have to include the complete
contact information for every party with advertising in a given
e-message. Applications and software that historically assumed
consent to allow updates and to fix "bugs" on an ongoing
basis, now must require the consumer to actively consent to such
activities. While comprehensive in scope and stringent in their
requirements, it remains to be seen how effective these new
regulations will actually be in preventing spam, and how greatly
they will hinder businesses and consumers alike.
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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