Canada: From Delay Comes Opportunity – It's Time For A CASL Compliance Check-Up

In an increasingly connected society, the channels available to businesses to connect with consumers have reached unprecedented heights. This digital accessibility to consumers and their personal data, through email marketing or social media, has provided a vehicle for businesses and their marketing campaigns to gain traction with broader and more diverse audiences.

However, the scope of these activities and the wider availability of information online prompted concerns over privacy rights and data breaches, from consumer groups and governments alike. In response to these concerns, the federal government introduced Canada's Anti-Spam Legislation (CASL) in July 2014. Among the strictest anti-spam laws in the world, CASL prohibits unsolicited marketing techniques (often enabled by webscraping applications) in favour of a consumer-oriented consent model.

When CASL was first introduced, the legislation's most expansive element, a right empowering consumers to take legal action against businesses for breaches of certain provisions, was slated to come into force on July 1, 2017. However, the federal government recently announced that it would be delaying the implementation of the private right of action pending review by a parliamentary committee, to consider clarifying CASL's requirements and to address the compliance concerns raised by the business community.

While this delay has come as welcome news to some, businesses should be aware that the balance of CASL continues to apply during this review period.

What is the private right of action?

CASL's private right of action provides consumers with the direct right to take businesses to court, whether on their own or as part of a class action, for breaches of CASL, including for:

  • sending unsolicited commercial e-messages, altering transmission data and installing computer programs without consent (which also applies to persons who "aid and abet" any of those breaches);
  • collecting or using electronic addresses compiled by a webscraping tool or other application designed to generate or search for and collect email addresses; or
  • engaging in deceptive marketing practices in e-messages, such as using false or misleading sender or subject line information, making materially false or misleading representations in an e-message and using false or misleading locators (such as metadata or a URL).

The biggest shift associated with the private right of action was the possibility of businesses paying damages to consumers for CASL breaches, ranging from $200 per contravention of the unsolicited commercial e-messages requirements to $1,000,000 per day for breaches of the computer program installation and anti-webscraping provisions.

What does the delay mean?

As it stands, the federal government has committed to a review of CASL, noting that it supports a "balanced approach that protects the interests of consumers while eliminating any unintended consequences for organizations that have legitimate reasons for communicating electronically with Canadians."

To date, there is no indication as to when the parliamentary review will take place, how long it might take or whether the committee will recommend changes to CASL beyond the private right of action. What we do know is that CASL remains in force and represents a significant compliance burden for businesses that interact with their customers through electronic communications.

So, is anything still happening on July 1, 2017?

Despite the delay to the private right of action, July 1, 2017 still marks the end of the 3-year transition period for implied consent, which permitted businesses to send commercial e-messages to any person with whom they had an existing business or non-business relationship, as long as the relationship existed before July 1, 2014. Going forward, businesses will need to be aware of and actively manage the time limits that CASL imposes on using implied consent as a basis to send commercial e-messages.

What do you do now?

With the private right of action delayed, businesses should continue to consider whether they are CASL-compliant and use this opportunity to develop a comprehensive marketing strategy going forward. While your strategy should be tailored to your business, the following are a few thoughts on how businesses can navigate the CASL regulatory landscape and build a stronger brand:

  • Leverage your opportunities – Many types of e-messages are permitted under CASL without express consent. These include: where you have an existing business relationship with the recipient, sending electronic invoices and receipts to customers, and responding to requests or inquiries that you receive from your customers—although care should be taken, as some of these exceptions are time-limited. These permitted exceptions should be viewed as opportunities to ask for express consent to communicate electronically with those consumers, increasing the chance to convert single interactions into lasting relationships.
  • Webscraping was overrated – No one likes an unwelcome guest, whether it's at their front door or in their inbox. While webscraping and similar technologies once provided a cost-effective medium to generate leads and customers, this marketing method was impersonal, flooded inboxes with unwanted emails, and generally aggravated consumers. A better approach, from both a compliance and brand equity perspective, is to engage with your customer base and obtain their consent to receive your next email blast. Your customers may thank you for it.
  • Explore alternative online marketing channels – If your business does not already have a presence on social media, now may be the time to explore this medium. A well-executed social media marketing strategy can provide significant value by building a strong following of existing and new customers, while increasing your business' conversion rate. From a CASL perspective, the CRTC has indicated in its FAQs that a Facebook wall post would not constitute sending a commercial electronic message to an "electronic address" (falling outside of the CASL regime), while more targeted messages (including via Facebook's Messenger or LinkedIn's InMail) would fall foul of the provisions. Similarly, typical advertising on websites and social media sites, such as sponsored links generated by Google AdWords or similar technology, may not be caught under CASL (although the CRTC has not confirmed this).
  • Cover your tracks – The CRTC has issued a reminder about the importance of keeping records of consent: it is your business' responsibility to demonstrate that it has consent to send electronic messages. While this can be as simple as maintaining a spreadsheet to log consents, more comprehensive solutions are available to help businesses manage the recordkeeping aspects of CASL compliance. Not only will these records help you in the event of a CRTC investigation or private action, they should also help you keep tabs on your existing customer base.
  • Seek out assistance – If the changes to CASL seem confusing or have put you off online marketing altogether, just remember that you are not alone. From lawyers to consultants, expert advisors are available to assist your business to put procedures in place to help reduce the risks relating to online marketing activities. Alternatively, your business could consider outsourcing its online marketing campaigns, which can shift some of the CASL compliance risk to the service provider, if done carefully.

Conclusion

While ensuring CASL compliance in the lead up to July 1 will be top of mind for businesses that interact with their customers electronically, a savvy approach to advertising and compliance activities should provide the opportunity to establish stronger customer relationships and enhance brand awareness. Although the delay in the private right of action provides a reprieve from the uncertainties of direct claims from consumers, now is the time to implement effective CASL compliance strategies while simultaneously leveraging this opportunity to increase brand awareness and connect with a more engaged customer base.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.