We all despise the proliferation of phishing, hacking, malware,
spyware and data mining for personal information which has
insidiously infected the indispensable electronic communications
systems on which we depend. The mass emails in my Inbox are, in the
main, an unwelcome annoyance. Last week, these unsolicited emails
came from banks, magazine publishers, law firms, a few big box
stores, mortgage brokers, camera companies, BBQ companies, drug
companies and credit repair companies. But, I wonder, are they any
less welcome than the 18 ozs of print flyers in my week-end
newspapers? (I actually weighed them).
I don't know any phishers or hackers but I do know many who
send "commercial electronic messages" which encourage or
deal with the exchange of money. These perpetrators of
"commercial electronic messages" are clients! They
collect email addresses of old customers, new customers, former
customers, potential customers and just about anyone else to send
out email "blasts" to announce new products, weekly
specials, new stores, new services, and the like. I even know
lawyers who send out newsletters by email to inform their clients
of new developments in the law and invite them to contact the
lawyer for assistance and specific advice. Some even tweet, use
Facebook or Linked-In.
Beginning July 1, 2014, Canada's Anti-Spam Law (CASL) comes
into effect. Although many of its provisions will be phased in,
anyone looking to send a "commercial electronic message"
had better be careful. CASL puts the onus on the sender to prove
that the recipient has given specific opt-in consent to receive the
message. Also, sneaking consent language into the fine print of a
contract will not pass muster, according to the CRTC – the
consent cannot be co-mingled with other terms.
Although there is a phase-in period of three years on the
requirement for express opt-in consents (during which time implied
consent may be sufficient for certain existing relationships within
the preceding two years), and there are some other exemptions to
the requirements, compliance costs may be an expensive nightmare
for companies that promote their goods and services on-line, or who
are using or want to adopt digital flyers instead of print media.
Also, the consequences are potentially severe:
Up to $10 million fines per occurrence for
corporations, and up to $1 million per occurrence for
potential personal liability for corporate directors and
officers, which being a fine, is not covered by directors and
officers insurance policies
vicarious corporate liability for conduct of employees in
violation of CASL
As an adviser to business clients, and the occasional
perpetrator of my own "electronic commercial messages",
my main fear is not the regulators coming after me – what
causes me shivers is Joe Q. Public who will have a private right of
action for violations beginning in 2017, which will likely take the
form of class actions.
The cost savings and other benefits for businesses moving to
"digital flyers" from print media was the subject of the
lead article in the Report on Business in the Globe & Mail on
May 9, 2014. According to the article, the long range business plan
of Canadian Tire is to transition 11 million weekly print flyers to
digital flyers – an undertaking that seems herculean in terms
of obtaining and tracking opt-in, unrevoked consents. Directors and
officers of large Canadian companies may soon be wishing for the
"good ole days" of the print flyer on the front
Canada obviously needs laws to control nefarious conduct on the
internet – and it was among the last of the G20 to do so.
With the extremely wide blast radius of CASL, the potential for
broad liability, heavy fines and public enforcement by class
action, Canada is a laggard no more. Predictions abound as to the
long range impact of CASL, and even whether the legislation will
survive without significant dilutive amendments during the phase-in
period. Time will tell.
Practice what you preach, my father says. At MBS, we are
advising clients to take full advantage of the 3 year phase-in
period to build their base of opt-in consents. In that vein,
please click to link to our website page where you can complete
your opt-in consent to receive digital content from MBS!
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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