Wednesday, July 16, 2014

Storming the CASL - Your email to Canada may now be against the law

By Wendy Hulton

Canada’s Anti-Spam Legislation (CASL) took effect July 1, 2014. CASL prohibits sending commercial electronic messages (CEMs) such as email, to parties in Canada without consent. If you don’t have consent or fall under one of the exceptions to the consent requirement, you may want to consider resorting to the postal service to obtain consent to send CEMs to Canadians. Even if you have consent, if challenged, you need to be able to prove it. Practically speaking, this puts an end to “cold” emailing to Canadians.
What is the risk?
If you or your organization is found to have sent non-compliant electronic messages, it can mean up to a $1 million dollar fine for individuals and $10 million dollars for corporations. Officers, directors and agents of a corporation can be liable if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation. Starting in 2017, recipients of the messages can also sue for $200 for each message, once the private right of action provisions comes into force. 

What type of electronic messages does it apply to? 

CASL applies, if any element of the electronic message encourages participation in a commercial activity. The good news is that once express consent has been granted, it is valid until it is revoked – the situation becomes trickier if you’re relying on implied consent in a pre-existing business relationship as time limits apply to the implied consent. 

Does it apply to a message sent from the U.S.? 

CASL’s provisions apply to any CEM where a computer system located “in Canada is used to send or access the electronic message”.  It applies to emails, instant messages, SMS messages and messages sent to “similar accounts”. This means that the form, content and unsubscribe requirements established by CASL apply to foreign messages including those sent by foreign organizations to Canadian recipients. 

What is Express Consent? 

Express consent can be obtained electronically, verbally or in written format, but to be valid, the recipient needs to understand what the consent is for, be provided with the sender’s contact information and be informed that they can withdraw their consent at any time. Implied consent comes into play when two parties already have an existing business relationship.  

Does CASL apply to all Electronic Messages? 

CASL’s provisions permit certain messages to be sent without full CASL compliance. These include for example: 

·       Business to Business - messages sent within an organization by an employee, representative, consultant or franchisee to another employee, representative, consultant or franchisee of that organization in connection with the activities of that organization or to another organization, if the organizations “have a relationship” and the message concerns the activities of the recipient organization.  

·       Messages sent in the context of a Family Relationship and/or Personal Relationship – Family means individuals related by marriage, common-law partnership or a legal parent-child relationship and personal relationship means individuals who had direct, voluntary, two-way communications where it would be reasonable to conclude that they have a personal relationship taking defined factors into consideration. 

·       One referral message - CASL contains provisions that permit one message to be sent following a referral by any individual who has an “existing business” or “non-business relationship”, family or personal relationship with the person who sent the message and that discloses the name of individual that made the referral and the fact that the message is sent as a result of the referral. 

Does CASL apply to Social Media? 

Yes, CASL applies to Social Media.  Any marketing endeavor, even on social media, may be considered a CEM, if the message says “encourage[s] participation in a commercial activity” and it is sent to an electronic address.  According to the frequently asked questions (FAQs) provided by the Canadian Radio-Television and Telecommunications Commission (CRTC), a social network account may fall within the category of an electronic address (i.e. a similar account to email accounts, phone accounts and instant messaging accounts). According to the CRTC: “a typical advertisement placed on a website or blog post would not be captured...”, whether communication using social media fits the definition of “electronic address”, must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. For example, a Facebook wall post would not be captured. However, messages sent to other users using a social media messaging system (e.g., Facebook messaging and LinkedIn messaging), would qualify as sending messages to “electronic addresses”.  

What should you do to ensure CASL Compliance? 

·         Conduct a CASL compliance audit.

·         Put a CASL compliance program in place. Such a program is critical to establishing a due diligence defense to any alleged violation of CASL. 

·         If in doubt – resort to seeking consent using postal services.