Canada’s new anti-spam law was passed in December 2010 and, following a Governor in Council order, it will enter into force on . Once the law is in force, it will help to protect Canadians while ensuring that businesses can continue to compete in the global marketplace. On ,sections of the Act related to the unsolicited installation of computer programs or software come into force.
Businesses that violate the new law could face financial penalties of up to $10 million per violation, while individuals could be fined up to $1 million per infraction.
Organizations that don’t comply with CASL risk serious penalties, including criminal charges, civil charges, personal liability for company officers and directors.
In addition to emails, the new law also prohibits businesses from sending unsolicited messages to social media inboxes.
Grace Period for Compliance:
Businesses have a three year grace period after July 1, 2014 to verify and confirm consent to send CEMs, but can still only communicate with recipients with whom they have an existing business relationship (2017).
When the new law is in force, it will generally prohibit the:
- sending of commercial electronic messages without the recipient’s consent (permission), including messages to email addresses and social networking accounts, and text messages sent to a cell phone;
- alteration of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
- installation of computer programs without the express consent of the owner of the computer system or its agent, such as an authorized employee;
- use of false or misleading representations online in the promotion of products or services;
- collection of personal information through accessing a computer system in violation of federal law (e.g. the Criminal Code of Canada); and
- collection of electronic addresses by the use of computer programs or the use of such addresses, without permission (address harvesting).
There are three government agencies responsible for enforcement of the law. When the new law is in force, it will allow:
- The Canadian Radio-television and Telecommunications Commission (CRTC) to issue administrative monetary penalties for violations of the new anti-spam law.
- The Competition Bureau to seek administrative monetary penalties or criminal sanctions under the Competition Act.
- The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.
How do I obtain consent?
Consent can be obtained either in writing or orally. In either case, the onus is on the person who is sending the message to prove they have obtained consent to send the message.
The CRTC has issued information bulletins to provide guidance and examples of recommended or best practices. Compliance and Enforcement Information Bulletin CRTC 2012-548, among other things, helps explain what information is to be included in a request for consent. The Bulletin also suggests some key considerations that may make tracking or recording consent easier, and therefore, may make it easier to prove consent. They are:
- whether consent was obtained in writing or orally,
- when it was obtained,
- why it was obtained, and
- the manner in which it was obtained.
The examples provided in the information bulletin are not exhaustive. They are simply examples of recommended or best practices. They may not necessarily be appropriate in every situation. Compliance will be examined on a case-by-case basis in light of the specific circumstances of a given situation.
Example of Email to Be Sent Prior to July 1, 2014
The manner in which you request express consent cannot presume consent on the part of theend-user. Silence or inaction on the part of the end-user also cannot be construed as providing express consent. For example, a pre-checked box cannot be used, as it assumes consent.
Rather, express consent must be obtained through an opt-in mechanism, as opposed to opt-out.The end-user must take a positive action to indicate their consent. For example, this can be done by providing a blank box which a user can check off to indicate consent.
For more information, please see Compliance and Enforcement Information BulletinCRTC 2012-549 on the use of toggling to obtain express consent.
Transition of the Law – What if I gained consent before July 1, 2014?
Knowing that people and businesses may need to change their practices when it comes to sending commercial electronic messages (CEMs), the legislation includes a transitional provision that relates to the consent requirement. There are two types of consent – express and implied. The transitional provision set out in section 66 of CASL applies to implied consent.
Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business ornon-business relationship that includes the communication of CEMs. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs.
In contrast, express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent.
The Electronic Commerce Protection Regulations (CRTC) Information Bulletin
Information to be included in a CEM (Reg 2)
- Sender(s) must be identified
- Including Affiliates
- CEMs must include the sender’s mailing address
- Valid for 60 days
Form of CEM (Unsubscribe Mechanism) – (Reg 3)
Information to be included in a request for consent – (“sought separately”) – (Reg 4)
Specify functions of computer programs (Reg 5)
Use of Toggling Information Bulletin
What is Toggling?
Additional Guidance Material
Personal and Family Relationships
- Section 6 of CASL does not apply to a CEM sent to an individual with whom the sender has a “personal or family relationship”, as defined in paragraph 2(b) of the GiC Regulations.
- A “personal relationship” involves direct, voluntary, 2-way communication.
- In each case, the non-exhaustive list of factors set out in paragraph 2(b) (e.g. sharing of interests, frequency of the communication, etc.) will be taken into consideration.
- As explained in the RIAS, the definition of “personal relationship” should remain limited to close relationships.
- The purpose is to establish limits and prevent potential spammers from exploiting this concept in order to send CEMs without consent.
- A “personal relationship” is one that exists between individuals.
- Legal entities, such as a corporation, cannot have a personal relationship. Someone who sends a CEM on behalf of a corporation may not claim to have a personal relationship with the recipient.
Express consent obtained prior to CASL
- If you obtained valid express consent prior to CASL coming into force, you will be able to continue to rely on that express consent even if your request did not contain the requisite identification and contact information
- All CEMs sent after CASL comes into force must contain the requisite information, meet all form requirements and contain an unsubscribe mechanism
- CASL requires the sender to prove having obtained valid express consent.
Transitional period for implied consent
- Section 66 deems implied consent for a period of 36 months (unless the recipient withdraws consent earlier)
- There must be an existing business relationship or existing non-business relationship
- The relationship must include the communication via CEMs
- During the transition period, the definition of existing business relationship and non-business relationship is not subject to the limitation periods (6 months and 2 years) that would otherwise be applicable under CASL, for implied consent to exist.
Business to Business
- Commercial electronic messages (CEMs) sent by an employee, representative, consultant or franchisee of an organization to:
- Another employee, representative, consultant or franchisee of the organization
- Message must concern the activities of the organization
- An employee, representative, consultant or franchisee of another organization
- The organizations must have a relationship; and
- Message must concern the activities of the organization to which the message is sent
- Another employee, representative, consultant or franchisee of the organization
- Consent not required to send the CEM
- No requirement to add information requirements, and an unsubscribe mechanism to the CEM
Content Credit: This content is dirctly sourced from http://fightspam.gc.ca/eic/site/030.nsf/eng/home
If you need further information please take a look at their question and answer section.
Watch a detailed presentation on Canada’s anti-spam legislation.
Download the presentation given at the information sessions.