Once CASL takes effect, you will need express or implied consent
before you (or your franchisees) can send a commercial electronic
message (CEM). While franchisors are well aware of the pending
impact of CASL and have been diligently ensuring that their
organizations are ready, the bigger question that looms on the
horizon is what are they doing to help their franchisees understand
and comply with CASL's requirements. Franchisors will typically
be able to rely on implied consent under the B2B CASL provisions to
communicate electronically with their franchisees. The bigger
concern will be the B2C communications between franchisees and
consumers. There is a lot of information on CASL available and
while seemingly straightforward, the actual implementation for both
franchisors and franchisees may prove to be more difficult. Ask
Do your franchisees send CEMs?
Do you know whether they are aware that they need to have
consent to send CEMs?
Do you know whether they understand the difference between
implied or express consent to send CEMs?
Do their CEMs satisfy the CASL content requirements?
Do they know that the consents need to be recorded, in case
they have to prove they had consent to send a CEM?
Do you know if they have an unsubscribe mechanism for their
Enforcement of CASL will be undertaken jointly by three
regulators: the Canadian Radio-Television Commission, the
Competition Bureau and the Office of the Privacy Commissioner.
These enforcing bodies will have authority to impose a wide variety
of sanctions on individuals and businesses that contravene CASL.
While the regulators will probably be lenient initially,
individuals may be fined up to $1,000,000 per violation and
corporations may be fined up to $10,000,000 per violation. CASL
also creates a private right of action, that takes effect in 2017
that permits an individual to take civil action against anyone who
violates CASL. If your franchisees are not prepared for CASL, it is
not the risk of significant fines that you should be worried about,
but rather the potential backlash through social media.
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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