Complying with Canada’s Anti Spam Legislation …...Section 6, CASL “6. (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic

Complying with Canada’s Anti-

Spam Legislation (“CASL”)

Presented by Jennifer Corak,

Mills & Mills LLP

Jennifer Corak is an associate at Mills & Mills LLP whose practice is primarily focused on business law, and wills, estates and trusts work. She is also a member of the firm’s design law group and employment law group. As part of her practice, Jennifer has been taking the time to familiarize herself with Canada's new Anti-Spam Legislation. Jennifer applies her knowledge and experience to the problems faced by her clients. She is a member of the Canadian Bar Association, the Ontario Bar Association, the Toronto Lawyers Association and the Toronto Midtown Business Association.

“An Act to promote the efficiency and adaptability

of the Canadian economy by regulating certain

activities that discourage reliance on electronic

means of carrying out commercial activities, and

to amend the Canadian Radio-television and

Telecommunications Commission Act, the

Competition Act, the Personal Information

Protection and Electronic Documents Act and the

Telecommunications Act”

AGENDA 1. Purpose of CASL 2. Is it a Commercial Electronic Message? – Key

Terms 3. Section 6 Requirements 4. Unsubscribe Mechanism 5. Consent – Express or Implied 6. Exemptions – Full vs. Partial 7. Enforcement 8. Additional Resources 9. Best Practices 10. Questions

Purpose “The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct

(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities; (b) imposes additional costs on businesses and consumers; (c) compromises privacy and the security of confidential information; and (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.”

Section 3, CASL

Prohibitions

CASL prohibits four main activities:

(i) Sending unsolicited commercial electronic messages;

(ii) Altering transmission data of an electronic message;

(iii) Installing unsolicited computer programs; and

(iv) Collecting or using electronic addresses using a computer program without the knowledge and consent of the owner.

Is it a Commercial Electronic

Message (“CEM”) – Key Terms

Is it a Commercial Electronic Message

(“CEM”) – Key Terms

“‘electronic message’ means a message sent by any means of telecommunication, including a text, sound, voice or image message.”

Section 1(1), CASL



Meaning of commercial electronic message “(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that (a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land; (b) offers to provide a business, investment or gaming opportunity; (c) advertises or promotes anything referred to in paragraph (a) or (b); or (d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.”

Section 1(2), CASL



“a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity”

Section 1(2), CASL

1. Is it an electronic message?

2a. Look at (a) the content of the message, (b) the hyperlinks, and (c) the contact information found in the message.

2b. Ask: Is the purpose or one of the purposes to encourage participation in a commercial activity?

Is it a Commercial Electronic Message (“CEM”) – Key Terms



“‘commercial activity’ means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.”

Section 1(1), CASL



A CEM includes an electronic message that, “(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land; (b) offers to provide a business, investment or gaming opportunity; (c) advertises or promotes anything referred to in paragraph (a) or (b); or (d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so”

Section 1(2), CASL


(“CEM”) - Examples

Section 6, CASL

“6. (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless

▫ (a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and

▫ (b) the message complies with subsection (2).”

Section 6(1), CASL

Section 6 Content Requirements 1. Identifying information • the name of the person sending the message and, if

different, the name by which that person carries on business

• if the message is sent on behalf of another person, the CEM must identify the name of the person on whose behalf the message is being sent and the name by which that person carries on business (if different)

• A statement making it clear who is sending the message and who the message is being sent on behalf of

• Mailing address • Telephone, email or web address

Section 6– Requests for Consent Requests for Consent must set out the purpose(s) for which the consent is being sought as well as, “(a) the name by which the person seeking consent carries on business, if different from their name, if not, the name of the person seeking consent; (b) if the consent is sought on behalf of another person, the name by which the person on whose behalf consent is sought carries on business, if different from their name, if not, the name of the person on whose behalf consent is sought; (c) if consent is sought on behalf of another person, a statement indicating which person is seeking consent and which person on whose behalf consent is sought; and (d) the mailing address, and either a telephone number providing access to an agent or a voice messaging system, an email address or a web address of the person seeking consent or, if different, the person on whose behalf consent is sought; and (e) a statement indicating that the person whose consent is sought can withdraw their consent.”

Section 4, CRTC CASL Reg. SOR/2012-36

Section 6 – Requests for Consent –

Opt-in Consent

Section 6 Requirements - Referrals

• Who made the referral?

▫ The first CEM sent to a referral must not only include the identifying information, but also,

(1) it must disclose the full name of the individual or individuals who made the referral, and

(2) it must state that the message is sent as a result of the referral.

Section 6 Requirements – Unsubscribe

Mechanism

Section 6 Requirements – Unsubscribe

Mechanism

“11. (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must (a) enable the person to whom the commercial electronic message is sent to indicate, at no cost to them, the wish to no longer receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message or the person — if different — on whose behalf the message is sent, using

(i) the same electronic means by which the message was sent, or (ii) if using those means is not practicable, any other electronic means that will enable the person to indicate the wish; and

(b) specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.”

Section 11(1), CASL

Do you have consent?

Remember, CASL is an opt-in

regime!

Consent – Express vs. Implied

Express

Implied

- Does not expire (unless it is withdrawn)

- If obtained post-July 1, 2014, it

must comply with the form requirements set out in CASL

- CASL sets out circumstances where implied consent exists

- Expires in accordance with the timelines set out in CASL

Implied Consent

• Existing business relationship • Existing non-business relationship

• Email conspicuously published

• Disclosure of the electronic address

• As prescribed by regulations

Implied Consent – Existing

Business Relationship

Implied Consent – Existing Business

Relationship (a) the purchase of a product, good, service, land or an interest or right in land within two years prior to the CEM being sent; (b) the acceptance by the recipient of a business, investment, or gaming opportunity offered by the sender within two years prior to the CEM being sent; (c) the bartering of a product, good, service, land or an interest or right in land between the recipient and sender within the two year period prior to the CEM being sent; (d) a written contract between the recipient and sender regarding a matter not referred to in (a) to (c), above, that is still in effect, or expired within the two year period prior to the CEM being sent; or (e) an inquiry or application from the recipient to the sender regarding anything mentioned in (a) to (c), above, within the 6-month period prior to the CEM being sent.

Implied Consent – Existing Non-

Business Relationship 1. A donation or gift made by the recipient to the sender

within the two year period prior to the day the message was sent, if the sender is a registered charity, a political party or organization, or a candidate for publicly elected office;

2. Volunteer work performed by the recipient for the sender within the two year period prior to the day the message was sent, if the sender is a registered charity, a political party or organization, or a candidate for publicly elected office;

3. Membership by the recipient in the sender, if the sender is a club, association, or voluntary organization.

The complete definition of “existing non-business relationship” can be found at section 10(13) of CASL. Electronic Commerce Protection Regulation, SOR/2013-221 defines “membership” and “clubs, associations or volunteer organization” at s. 7.

Implied Consent – Timing

Implied Consent – Transition Period

July 1, 2017

RECAP

Exemptions

In this presentation,

• “Full exemption” – all of section 6

• “Partial exemption” – the section 6 consent requirement

Full Exemptions The Section 6 CASL Requirements do not apply to a CEM,

(1) that is, in whole or in part, an interactive two-way voice communication between individuals;

(2) that is sent by means of a facsimile to a telephone account; or

(3) that is a voice recording sent to a telephone account.

Full Exemptions – Family

Relationships

“‘family relationship’ means the relationship between an individual who sends a message and the individual to whom the message is sent if those individuals are related to one another through a marriage, common-law partnership or any legal parent-child relationship and those individuals have had direct, voluntary, two-way communication”

Section 2(a), IC CASL Reg. SOR/2013-221

Full Exemption – Personal Relationship

“‘personal relationship’ means the relationship between an individual who sends a message and the individual to whom the message is sent, if those individuals have had direct, voluntary, two-way communications and it would be reasonable to conclude that they have a personal relationship, taking into consideration any relevant factors such as the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated or whether the parties have met in person.”

Section 2(b), IC CASL Reg. SOR/2013-221

Individual vs. Person

“Person” is defined in section 1(1) of CASL as:

an individual, partnership, corporation, organization, association, trustee, administrator, executor, liquidator of a succession, receiver or legal representative

Full Exemption – Commercial Activity

1. Is the person to whom you are sending the CEM engaged in a commercial activity?

2. Does the CEM consist solely of an inquiry or application related to that activity?

Full Exemption – Commercial Activity

Is the CEM you intend to send in response to,

1. a request,

2. an inquiry, or

3. a complaint

or is it otherwise solicited by the person to whom the message is sent?

Is there a financial element?

Full Exemption vs. Partial Exemption –

Commercial Activity

Is there a financial element?

If so, then it is not fully exempt!

Full Exemption – Employee,

Representative, Consultant or Franchisee

“Section 6 of the Act does not apply to a commercial electronic message (a) that is sent by an employee, representative, consultant or franchisee of an organization

(i) to another employee, representative, consultant or franchisee of the organization and the message concerns the activities of the organization, or (ii) to an employee, representative, consultant or franchisee of another organization if the organizations have a relationship and the message concerns the activities of the organization to which the message is sent”

Section 3(a), IC CASL Reg. SOR/2013-221

Partial Exemptions The following messages are exempt from the consent requirement of section 6 of CASL: 1. A CEM that provides a quote or estimate for the supply of a

product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent.

2. A CEM that facilitates, completes or confirms a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or, if different, the person on whose behalf it is sent.

3. A CEM that provides information directly related to an employment relationship or related benefit plan, in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled.

Section 6(6), CASL

Partial Exemptions - Referrals The consent requirement of section 6 of CASL does not apply to the first CEM sent by a person for the purpose of contacting the individual to whom the message is sent following a referral by any individual who has an existing business relationship, an existing non-business relationship, a family relationship or a personal relationship with the person who sends the message, as well as any of those relationships with the individual to whom the message is sent.

Section 4(1), IC CASL Reg. SOR/2013-221

Partial Exemptions - Referrals

1. Who is making the referral and what is his or her full name?

2. What is the relationship between the individual making the referral and the individual to whom you are being referred?

3. What is your relationship with the individual making the referral?

4. Will the individual making the referral permit you to disclose his or her full name and the fact that you are sending the message as a result of the referral?

Enforcement

1. Notice of Violation

2. Warning/Administrative fines imposed by the CRTC

3. Monetary penalties

- Up to $1,000,000 per violation for individuals

- Up to $10,000,000 per violation for any other Person

4. Appeal

Enforcement

5. Undertakings

6. Due Diligence Defence

7. Liability

8. Administrative penalties under the Competition Act

9. Private right of action – July 1, 2017

Additional Resources (non-binding)

1. CRTC’s information bulletins

2. Industry Canada’s Regulatory Impact Analysis Statement (the “RIAS”)

3. CRTC staff level webinar

4. Government website publications

5. Infographics

Best Practices

1. Analyze messages on a case-by-case basis – think before you send.

2. Educate yourself on CASL requirements

and stay informed.

3. Create a CASL compliance policy.

4. Educate your employees.

5. Keep thorough and up-to-date records.

6. When in doubt – better safe than sorry.

QUESTIONS…

Thank you!

This presentation was a non-exhaustive overview of Canada’s new anti-spam legislation.

The information contained in this presentation is of a general nature and cannot be relied upon as legal advice.

For legal assistance, contact Jennifer Corak at 416-682-7072, or

[email protected].

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