While Canada's "anti-spam" legislation (CASL) has
not yet been proclaimed in force, the CRTC has been busy fulfilling
its mandate pursuant to that legislation. In March of this year,
the CRTC issued the Electronic Commerce Protection Regulations
(CRTC) (Regulations), which prescribe the form and certain
information to be included in commercial electronic messages, and
requests for consent to send CEMs, the alteration of transmission
data in electronic messages, and the installation of computer
The CRTC has now issued two guidelines to provide detail on the
content requirements for commercial electronic messages, and what
practices and format it would consider acceptable to obtain consent
to send a commercial electronic message.
Most interesting are the sections regarding request for consent
— how to get it, and what needs to be included.
The CRTC makes it clear that each of the prohibited acts
(sending a CEM, altering transmission data in electronic messages
in the course of a commercial activity, and installation of a
computer program on another person's computer in the course of
a commercial activity) require separate and distinct consent to be
The CRTC further clarifies that consent cannot be subsumed in
website terms and conditions — it must be clearly identified
and separate from the consent to general terms and conditions of
use or sale. Similarly, if the proper use of a product or service
requires the installation of a computer program, then it should be
explained in the consent request, and consent must be obtained
before the product is used or sold.
The CRTC provides useful details on means and methods to obtain
consent. It is clear that express consent must be an opt-in
mechanism, not an opt-out mechanism. Therefore, organizations are
going to have to be explicit in this regard, and a toggling
mechanism that pre-checks a consent box will not be sufficient. A
CEM cannot be used to elicit express consent, either. It would,
however, be sufficient to require the individual to actively check
a blank consent box, or type in an email address to indicate
consent, with a confirmation of receipt provided to the
Since most organizations currently use their general online
consent to receive commercial electronic messages from their
customers (hopefully with an opt-out mechanism), the guidelines
will require significant changes by these organizations in order to
ensure compliance with the Regulations going forward.
The CRTC has also provided some detail on the unsubscribe
mechanism to be included in a CEM. This mechanism must be
"readily performed"; for emails, a link that takes the
user to a webpage where the user can unsubscribe from receiving all
or some types of CEM's from the sender works, as does a reply
to an SMS message with the word "STOP" or
"Unsubscribe", then clicking on a link to unsubscribe.
Again, this will be an interesting shift from the current practice
of embedding the unsubscribe mechanisms in user terms or privacy
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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