DO NOT CALL LIST PRESENTATION AT MANAGING PRIVACY COMPLIANCE!!

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  • In light of the above, for the purposes of the National DNCL Rules, the Commission determines that
    "Newspaper of General Circulation" means a printed publication in sheet form that is intended for general circulation, published regularly at intervals of not longer than seven days, consisting in great part of news of current events of general and local interest, and is sold to the public and to subscribers.
  • Telemarketers will be required to update their own lists with the National DNCL, and there will be a 31‑day grace period from the date of registration by the consumer for affected lists to be updated. As is currently the case, consumers may request to have their numbers added to a telemarketer's own list, which request must be processed by telemarketer at the time of the call (but not implemented for up to 31 days ?) and honoured (by maintaining the number on the list) for 3 years and 31 days from the date of the request
  • Defences
     
    72.1 (1) It is a defence for a person in a proceeding in relation to a violation to establish that the person exercised due diligence to prevent the violation
    Common law principles
    (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence in relation to a contravention of a prohibition or requirement of the Commission under section 41 applies in respect of a violation to the extent that the rule or principle is not inconsistent with this Act.
    Publication
     
    72.13 The Commission may make public the nature of a violation, the name of the person who committed it, and the amount of the administrative monetary penalty.
    Due diligence (s. 72.1(1)) and justification (s. 72.1(2)) are two defences available against any allegation that s. 41 was violated. Due diligence here means that the individual or corporation took all reasonable efforts to ensure that the actions taken were within the law. Similarly, all common-law rules and principles governing justification or excuse are available unless they are specifically excluded by the Telecommunications Act or inconsistent with the Act.
    Where a defence is raised, the CRTC must decide, on a balance of probabilities, whether the violation was committed (s. 72.08(2)) and, if it finds a violation to have occurred, may impose the penalty outlined in s. 72.01. There is a two-year limitation period - after the incident became known to the Commission - for the Commission to initiate an action concerning a violation (s. 72.12(1)), and a five-year time limitation on the right of the CRTC to commence an action to force payment of a fine (s. 72.09(2)).
    In light of all of the above, the Commission determines that in the case of obtaining express consent to be contacted by way of a telemarketing telecommunication, the forms of consent for collection, use, and disclosure of personal information described in Schedule 1 (Section 5), Clause 4.3 of the PIPED Act are sufficient. The Commission will also accept the methods of obtaining express consent set out in Decision 2005-15.
    4.3 Principle 3 — Consent
    The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
    Note: In certain circumstances personal information can be collected, used, or disclosed without the knowledge and consent of the individual. For example, legal, medical, or security reasons may make it impossible or impractical to seek consent. When information is being collected for the detection and prevention of fraud or for law enforcement, seeking the consent of the individual might defeat the purpose of collecting the information. Seeking consent may be impossible or inappropriate when the individual is a minor, seriously ill, or mentally incapacitated. In addition, organizations that do not have a direct relationship with the individual may not always be able to seek consent. For example, seeking consent may be impractical for a charity or a direct-marketing firm that wishes to acquire a mailing list from another organization. In such cases, the organization providing the list would be expected to obtain consent before disclosing personal information.
    4.3.1
    Consent is required for the collection of personal information and the subsequent use or disclosure of this information. Typically, an organization will seek consent for the use or disclosure of the information at the time of collection. In certain circumstances, consent with respect to use or disclosure may be sought after the information has been collected but before use (for example, when an organization wants to use information for a purpose not previously identified).
    4.3.2
    The principle requires “knowledge and consent”. Organizations shall make a reasonable effort to ensure that the individual is advised of the purposes for which the information will be used. To make the consent meaningful, the purposes must be stated in such a manner that the individual can reasonably understand how the information will be used or disclosed.
    4.3.3
    An organization shall not, as a condition of the supply of a product or service, require an individual to consent to the collection, use, or disclosure of information beyond that required to fulfil the explicitly specified, and legitimate purposes.
    4.3.4
    The form of the consent sought by the organization may vary, depending upon the circumstances and the type of information. In determining the form of consent to use, organizations shall take into account the sensitivity of the information. Although some information (for example, medical records and income records) is almost always considered to be sensitive, any information can be sensitive, depending on the context. For example, the names and addresses of subscribers to a newsmagazine would generally not be considered sensitive information. However, the names and addresses of subscribers to some special-interest magazines might be considered sensitive.
    4.3.5
    In obtaining consent, the reasonable expectations of the individual are also relevant. For example, an individual buying a subscription to a magazine should reasonably expect that the organization, in addition to using the individual’s name and address for mailing and billing purposes, would also contact the person to solicit the renewal of the subscription. In this case, the organization can assume that the individual’s request constitutes consent for specific purposes. On the other hand, an individual would not reasonably expect that personal information given to a health-care professional would be given to a company selling health-care products, unless consent were obtained. Consent shall not be obtained through deception.
    4.3.6
    The way in which an organization seeks consent may vary, depending on the circumstances and the type of information collected. An organization should generally seek express consent when the information is likely to be considered sensitive. Implied consent would generally be appropriate when the information is less sensitive. Consent can also be given by an authorized representative (such as a legal guardian or a person having power of attorney).
    4.3.7
    Individuals can give consent in many ways. For example:
    (a) an application form may be used to seek consent, collect information, and inform the individual of the use that will be made of the information. By completing and signing the form, the individual is giving consent to the collection and the specified uses;
    (b) a checkoff box may be used to allow individuals to request that their names and addresses not be given to other organizations. Individuals who do not check the box are assumed to consent to the transfer of this information to third parties;
    (c) consent may be given orally when information is collected over the telephone; or
    (d) consent may be given at the time that individuals use a product or service.
    4.3.8
    An individual may withdraw consent at any time, subject to legal or contractual restrictions and reasonable notice. The organization shall inform the individual of the implications of such withdrawal.
    The Commission notes that a consumer's telecommunications number is personal information and as such, the collection of the number falls under the PIPED Act provisions which require organizations to identify the purposes for which personal information is collected (e.g. to contact the consumer for marketing purposes).
    209.
    Part V: Express Consent
    44. For the purposes of the requirements set out in sections 5, 6, 41, and 42, accepted forms of express consent are
    (a) written consent, including a completed application form signed by the consumer giving consent to be contacted by way of telecommunications;
    (b) oral consent, including
    (i) oral consent verified by an independent third party;
    (ii) oral consent, where an audio recording of the consent is retained by the telemarketer or client of the telemarketer;
    (c) electronic consent through the use of a toll-free number;
    (d) electronic consent via the Internet; or
    (e) consent through other methods as long as a documented record of consumer consent is created by the consumer or by an independent third party.
    45. The onus is on the telemarketer and, where applicable, the client of the telemarketer to demonstrate that valid express consent was given by the consumer.
    46. A consumer may withdraw his or her express consent at any time.
    4. A telemarketer shall not initiate, and a client of a telemarketer shall make all reasonable efforts to ensure that the telemarketer does not initiate, a telemarketing telecommunication to a consumer's telecommunications number that is on the National DNCL, unless express consent has been provided by such consumer to be contacted via a telemarketing telecommunication by that telemarketer or the client of that telemarketer.   5. For the purposes of section 4, express consent shall clearly evidence the consumer's authorization that a telemarketing telecommunication made by or on behalf of a specific person may be placed to that consumer and shall include the telecommunications number to which the telemarketing telecommunication may be placed.
    Part V: Express Consent   1. For the purposes of the requirements set out in Part II, sections 4 and 5, and Part IV, sections 2 and 3, accepted forms of express consent are   (a) written consent, including a completed application form signed by the consumer giving consent to be contacted by way of telecommunications;
      (b) oral consent, including
      (i) oral consent verified by an independent third party;
      (ii) oral consent, where an audio recording of the consent is retained by the telemarketer or client of the telemarketer;
      (c) electronic consent through the use of a toll-free number;
      (d) electronic consent via the Internet; or
      (e) consent through other methods as long as a documented record of consumer consent is created by the consumer or by an independent third party.
      2. The onus is on the telemarketer and, where applicable, the client of the telemarketer to demonstrate that valid express consent was given by the consumer.
  • the Commission determines that in the case of obtaining express consent to be contacted by way of a telemarketing telecommunication, the forms of consent for collection, use, and disclosure of personal information described in Schedule 1 (Section 5), Clause 4.3 of the PIPED Act are sufficient. The Commission will also accept the methods of obtaining express consent set out in Decision 2005-15.
    4.3 Principle 3 — Consent
    The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
    Note: In certain circumstances personal information can be collected, used, or disclosed without the knowledge and consent of the individual. For example, legal, medical, or security reasons may make it impossible or impractical to seek consent. When information is being collected for the detection and prevention of fraud or for law enforcement, seeking the consent of the individual might defeat the purpose of collecting the information. Seeking consent may be impossible or inappropriate when the individual is a minor, seriously ill, or mentally incapacitated. In addition, organizations that do not have a direct relationship with the individual may not always be able to seek consent. For example, seeking consent may be impractical for a charity or a direct-marketing firm that wishes to acquire a mailing list from another organization. In such cases, the organization providing the list would be expected to obtain consent before disclosing personal information.
    4.3.1
    Consent is required for the collection of personal information and the subsequent use or disclosure of this information. Typically, an organization will seek consent for the use or disclosure of the information at the time of collection. In certain circumstances, consent with respect to use or disclosure may be sought after the information has been collected but before use (for example, when an organization wants to use information for a purpose not previously identified).
    4.3.2
    The principle requires “knowledge and consent”. Organizations shall make a reasonable effort to ensure that the individual is advised of the purposes for which the information will be used. To make the consent meaningful, the purposes must be stated in such a manner that the individual can reasonably understand how the information will be used or disclosed.
    4.3.3
    An organization shall not, as a condition of the supply of a product or service, require an individual to consent to the collection, use, or disclosure of information beyond that required to fulfil the explicitly specified, and legitimate purposes.
    4.3.4
    The form of the consent sought by the organization may vary, depending upon the circumstances and the type of information. In determining the form of consent to use, organizations shall take into account the sensitivity of the information. Although some information (for example, medical records and income records) is almost always considered to be sensitive, any information can be sensitive, depending on the context. For example, the names and addresses of subscribers to a newsmagazine would generally not be considered sensitive information. However, the names and addresses of subscribers to some special-interest magazines might be considered sensitive.
    4.3.5
    In obtaining consent, the reasonable expectations of the individual are also relevant. For example, an individual buying a subscription to a magazine should reasonably expect that the organization, in addition to using the individual’s name and address for mailing and billing purposes, would also contact the person to solicit the renewal of the subscription. In this case, the organization can assume that the individual’s request constitutes consent for specific purposes. On the other hand, an individual would not reasonably expect that personal information given to a health-care professional would be given to a company selling health-care products, unless consent were obtained. Consent shall not be obtained through deception.
    4.3.6
    The way in which an organization seeks consent may vary, depending on the circumstances and the type of information collected. An organization should generally seek express consent when the information is likely to be considered sensitive. Implied consent would generally be appropriate when the information is less sensitive. Consent can also be given by an authorized representative (such as a legal guardian or a person having power of attorney).
    4.3.7
    Individuals can give consent in many ways. For example:
    (a) an application form may be used to seek consent, collect information, and inform the individual of the use that will be made of the information. By completing and signing the form, the individual is giving consent to the collection and the specified uses;
    (b) a checkoff box may be used to allow individuals to request that their names and addresses not be given to other organizations. Individuals who do not check the box are assumed to consent to the transfer of this information to third parties;
    (c) consent may be given orally when information is collected over the telephone; or
    (d) consent may be given at the time that individuals use a product or service.
    4.3.8
    An individual may withdraw consent at any time, subject to legal or contractual restrictions and reasonable notice. The organization shall inform the individual of the implications of such withdrawal.
  • The Commission considers it appropriate to establish criteria in order to provide guidance on the elements that it will generally consider in assessing a defence of due diligence. The Commission determines that the following criteria are appropriate:
    The person demonstrates, as part of its due diligence defence, that the telecommunication resulted from an error and that as part of its routine business practices
    i) the person has established and implemented adequate written policies and procedures to comply with the Unsolicited Telecommunications Rules and to honour consumers' requests that they not be contacted by way of telemarketing telecommunications;
    ii) the person provides adequate on-going training to employees and makes all reasonable efforts to ensure adequate on-going training is provided to any person assisting in its compliance with the Unsolicited Telecommunications Rules and any written policies and procedures established under paragraph (i);
    iii) the person uses the National DNCL obtained from the National DNCL operator no more than thirty-one (31) days prior to the date any telemarketing telecommunication is made;
    iv) the person uses the telemarketer's or, where applicable, the client of the telemarketer's do not call list that was updated no more than thirty-one (31) days prior to the date any telemarketing telecommunication is made;
    v) the person uses and maintains records documenting a process to prevent the initiation of a telemarketing telecommunication to any telecommunications number that has been registered for more than thirty-one (31) days on the National DNCL, the telemarketer's do not call list or, where applicable, the client of the telemarketer's do not call list;
    vi) the person monitors and enforces compliance with the Unsolicited Telecommunications Rules and its written policies and procedures referred to in paragraph (i); and
    vii) in the case of a person who has retained a telemarketer to engage in telemarketing on its behalf, the person has entered into an agreement between itself and the telemarketer requiring that the latter comply with the Unsolicited Telecommunications Rules.
  • In light of the above, the Commission determines that a subscriber may register his or her telecommunications number on the National DNCL and de-register his or her number from the National DNCL. The Commission also finds that a person who has the authority to act on behalf of a subscriber to a telecommunications number may register that subscriber's number to, or de-register that subscriber's number from, the National DNCL.
    The Commission notes that section 72.02 of the Act allows it to hold a person liable for a violation of a prohibition or requirement of the Commission under section 41 of the Act that is committed by an employee, agent, or mandatory of the person. The Commission considers that if an employee, agent, or mandatory were to assist or facilitate a telemarketer in circumventing the Unsolicited Telecommunications Rules, it could issue a notice of violation against the telemarketer, if appropriate.
    The Canadian Marketing Association and the Marketing Research and Intelligence Association have advised their members that they may be able to ignore Canadians' opt-out requests from ioptout.ca since the requests are not "authenticated”; however, there is no requirement under Canadian law for such authentication and the CMA list is without authentication nor do the Canadian nor the U.S. do-not-call list features telephone number authentication. Professor Geist states that the MRIA has deliberately entered false information into iOptOut.ca and that other organizations have sought to stop opt-out attempts by simply blocking the email requests before they enter their email systems.These actions could result in a complaint under the National DNCL as well as a complaint before the Privacy Commissioner of Canada.
  • Disclaimer:
     
    Thank you and please be advised that this information is provided as general information only and should not be considered legal advice. You are advised to consult with a lawyer to consider your situation.
    George C. Eyre, Law Offices provides legal services in the areas of independent contractor agreements, computer and Internet law, intellectual property such as trade marks & copyright, corporate, commercial and business law. George's law firm runs a website, law4it.com, that features newsletters, articles, links and information on these matters.
  • DO NOT CALL LIST PRESENTATION AT MANAGING PRIVACY COMPLIANCE!!

    1. 1. Managing PrivacyManaging Privacy ComplianceCompliance Federated PressFederated Press April 23 & 23, 2008April 23 & 23, 2008
    2. 2. TheThe DO NOT CALL LISTDO NOT CALL LIST George C. EyreGeorge C. Eyre B. Math, M. Eng., L.L.B.B. Math, M. Eng., L.L.B. WWW.LAW4IT.COMWWW.LAW4IT.COM
    3. 3. Introduction – Legal FrameworkIntroduction – Legal Framework  Bill C-37, An Act to amend theBill C-37, An Act to amend the Telecommunications Act, S.C. 2005, c.50Telecommunications Act, S.C. 2005, c.50  Establish Operate & Enforce NationalEstablish Operate & Enforce National DNCL – 3DNCL – 3rdrd party delegationparty delegation  CRTC can impose AdministrativeCRTC can impose Administrative Monetary Penalties i.e. finesMonetary Penalties i.e. fines  CRTC Telecom Decisions CRTC 2008‑6CRTC Telecom Decisions CRTC 2008‑6 2007-48 2007‑47, CRTC 2004‑352007-48 2007‑47, CRTC 2004‑35  September 30, 2008September 30, 2008
    4. 4. CRTC UnsolicitedCRTC Unsolicited Telecommunications RulesTelecommunications Rules  Consist of: [Consist of: [ CRTC 2008‑6 ]CRTC 2008‑6 ]  I DefinitionsI Definitions  II National Do Not Call Rules [exemptions]II National Do Not Call Rules [exemptions]  III Telemarketing Rules apply to DNCLIII Telemarketing Rules apply to DNCL exemptions [exemptions ]exemptions [exemptions ]  IV ADAD RulesIV ADAD Rules  V Express ConsentV Express Consent  VI Record KeepingVI Record Keeping  VII Liability - DefencesVII Liability - Defences
    5. 5. IntroductionIntroduction  Core Rule: Telemarketers may not callCore Rule: Telemarketers may not call numbers on National DNCL withoutnumbers on National DNCL without express consent: Consumers to Registerexpress consent: Consumers to Register  Exemptions:Exemptions:  Registered Charities Political PartiesRegistered Charities Political Parties  Surveys / Polls General Circulation NewsSurveys / Polls General Circulation News  B2BB2B  Existing Business RelationshipsExisting Business Relationships
    6. 6. Introduction ( Cont’d)Introduction ( Cont’d)  Telemarketer Registration & RulesTelemarketer Registration & Rules  Fax RulesFax Rules  ComplaintsComplaints  Administrative Monetary PenaltiesAdministrative Monetary Penalties  DefencesDefences  CMA Do Not Contact & iOptout.ca etc.CMA Do Not Contact & iOptout.ca etc.  Implementation & ConclusionsImplementation & Conclusions  Q & AQ & A
    7. 7. Consumers to RegisterConsumers to Register  Consumers register individual home,Consumers register individual home, wireless and fax numbers for free throughwireless and fax numbers for free through a toll free number or onlinea toll free number or online  Effective for a three year period, afterEffective for a three year period, after which the number will automatically be de-which the number will automatically be de- registered (consumer's responsibility toregistered (consumer's responsibility to re‑register)re‑register)  No Costs to ConsumersNo Costs to Consumers  Telemarketers to payTelemarketers to pay
    8. 8. U.S. DNCLU.S. DNCL  Telephone numbers placed on the U.S.Telephone numbers placed on the U.S. National Do Not Call Registry will remainNational Do Not Call Registry will remain on it permanently due to the Do-Not-Callon it permanently due to the Do-Not-Call Improvement Act of 2007, which becameImprovement Act of 2007, which became law in February 2008. More than 157law in February 2008. More than 157 million phone numbers are on the Nationalmillion phone numbers are on the National Do Not Call Registry.Do Not Call Registry.  FTC Removes telephone numbers thatFTC Removes telephone numbers that have been disconnected and reassignedhave been disconnected and reassigned to other customers.to other customers.
    9. 9. Exemptions from NationalExemptions from National DNCL RulesDNCL Rules by or on behalf of registered charities;by or on behalf of registered charities;  by or on behalf of political parties;by or on behalf of political parties;  to collect information for a survey;to collect information for a survey;  to solicit a subscription for a "newspaperto solicit a subscription for a "newspaper of general circulation; "of general circulation; "
    10. 10. Exemptions ( cont’d)Exemptions ( cont’d)  to a consumer that has an existingto a consumer that has an existing business relationship with the telemarketerbusiness relationship with the telemarketer (provided that consent has not been(provided that consent has not been withdrawn to be so contacted).withdrawn to be so contacted).  B2B calls are exempt except if businessB2B calls are exempt except if business person has asked to be put on individualperson has asked to be put on individual do not call listdo not call list
    11. 11. ExemptionsExemptions  apply not to the entities themselves but toapply not to the entities themselves but to the telecommunications - hence all entitiesthe telecommunications - hence all entities are subject to compliance with otherare subject to compliance with other aspects of the Unsolicitedaspects of the Unsolicited Telecommunications Rules (i.e.Telecommunications Rules (i.e. Telemarketing Rules, the AutomaticTelemarketing Rules, the Automatic Dialing‑Announcing Devices (ADADs)Dialing‑Announcing Devices (ADADs) Rules, and the obligation to removeRules, and the obligation to remove complaining consumers from acomplaining consumers from a telemarketer's own do not call list, etc.).telemarketer's own do not call list, etc.).
    12. 12. ““existing business relationship”existing business relationship” meansmeans  a business relationship that has beena business relationship that has been formed by a voluntary two‑wayformed by a voluntary two‑way communication between , arising fromcommunication between , arising from  (a) purchase, lease or rental of products,(a) purchase, lease or rental of products, services within the 18 month period ;services within the 18 month period ;  (b) an inquiry or application, within the 6(b) an inquiry or application, within the 6 month period immediately preceding ormonth period immediately preceding or  (c) any other written contract(c) any other written contract  not included affiliate different legal entitynot included affiliate different legal entity
    13. 13. "Newspaper of General"Newspaper of General Circulation"Circulation" means a printed publication in sheet formmeans a printed publication in sheet form that is intended for general circulation,that is intended for general circulation, published regularly at intervals of notpublished regularly at intervals of not longer than seven days, consisting inlonger than seven days, consisting in great part of news of current events ofgreat part of news of current events of general and local interest, and is sold togeneral and local interest, and is sold to the public and to subscribers.the public and to subscribers. Only exemption is for calls for subscriptionsOnly exemption is for calls for subscriptions
    14. 14. Bell Canada DNCL OperatorBell Canada DNCL Operator  National DNCL Operator - Bell Canada -National DNCL Operator - Bell Canada - five yearfive year  Operator - responsible for registeringOperator - responsible for registering numbers, providing telemarketers withnumbers, providing telemarketers with up‑to‑date versions of the DNCL andup‑to‑date versions of the DNCL and receiving consumer complaints.receiving consumer complaints.  Funded by Subscription fees fromFunded by Subscription fees from telemarketerstelemarketers
    15. 15. Each Telemarketer MustEach Telemarketer Must RegisterRegister  Each Telemarketer Must Register beforeEach Telemarketer Must Register before making telemarketing calls on its own;making telemarketing calls on its own; ensure Client registers before calling on itsensure Client registers before calling on its behalf (2,3)behalf (2,3)  Register even if only doing exempt callsRegister even if only doing exempt calls  Fees & Investigation ProcessFees & Investigation Process    Subscribers to the National DNCL maySubscribers to the National DNCL may not use it for purposes other than thosenot use it for purposes other than those set out in the rulesset out in the rules
    16. 16. Telemarketing RulesTelemarketing Rules ExemptionsExemptions  Do not apply in respect of an unsolicitedDo not apply in respect of an unsolicited telecommunication made for purposestelecommunication made for purposes other than solicitation including thoseother than solicitation including those made solely for emergencies, accountmade solely for emergencies, account collection, surveys for members of thecollection, surveys for members of the public and market researchpublic and market research
    17. 17. Telemarketing Calls - HoursTelemarketing Calls - Hours  Telemarketing is restricted to the hours ofTelemarketing is restricted to the hours of 9:00 a.m. to 9:30 p.m. on weekdays, 10:009:00 a.m. to 9:30 p.m. on weekdays, 10:00 a.m. to 6:00 p.m. on weekends, in the timea.m. to 6:00 p.m. on weekends, in the time zone of the recipientzone of the recipient  statutory holidays – same hoursstatutory holidays – same hours
    18. 18. Telemarketing Calls (cont’d)Telemarketing Calls (cont’d)  At the beginning of a call a telemarketerAt the beginning of a call a telemarketer  Must identify the name or fictitious nameMust identify the name or fictitious name of the individual placing the call.of the individual placing the call.  Must identify the name of the telemarketerMust identify the name of the telemarketer whether calling on its own behalf or onwhether calling on its own behalf or on behalf of a client of the telemarketer.behalf of a client of the telemarketer.
    19. 19. Telemarketing Calls (cont’d)Telemarketing Calls (cont’d)  Upon request a telemarketer mustUpon request a telemarketer must  provide a local or toll‑free number allowingprovide a local or toll‑free number allowing the customer access to speak to anthe customer access to speak to an employee or other representative of theemployee or other representative of the telemarketer and where applicable, itstelemarketer and where applicable, its client;client;  provide the name and address of anprovide the name and address of an employee or other representative of theemployee or other representative of the telemarketer and where applicable, itstelemarketer and where applicable, its client, to whom the consumer can write.client, to whom the consumer can write.
    20. 20. Telemarketing Calls (cont’d)Telemarketing Calls (cont’d)  For any telephone numbers provided to aFor any telephone numbers provided to a consumer:consumer:  The telephone call shall be answeredThe telephone call shall be answered either by a live operator or a voicemaileither by a live operator or a voicemail system to take messages for thesystem to take messages for the consumer. The voicemail must informconsumer. The voicemail must inform consumers that their call will be returnedconsumers that their call will be returned within three (3) business days.within three (3) business days.
    21. 21. Telemarketing Calls (cont’d)Telemarketing Calls (cont’d)  The telemarketer or the client of theThe telemarketer or the client of the telemarketer must return consumer's calltelemarketer must return consumer's call within three (3) business days.within three (3) business days.  Telemarketers must display the originatingTelemarketers must display the originating calling number or an alternate numbercalling number or an alternate number where the call originator can be reachedwhere the call originator can be reached (except where the number display is(except where the number display is unavailable for technical reasons).unavailable for technical reasons).  Sequential dialing is prohibited.Sequential dialing is prohibited.
    22. 22. Telemarketing Calls (cont’d)Telemarketing Calls (cont’d)  Random dialing and calls to non‑publishedRandom dialing and calls to non‑published numbers are permitted, except to numbersnumbers are permitted, except to numbers registered on the National DNCL;registered on the National DNCL; emergency lines; and healthcare facilities.emergency lines; and healthcare facilities.  DNCLs are to be maintained by theDNCLs are to be maintained by the telemarketer on its own behalf or on behalftelemarketer on its own behalf or on behalf of a client of a telemarketer and remainof a client of a telemarketer and remain active for 3 yrs 31 days effective within 31active for 3 yrs 31 days effective within 31 days from the date of the consumer's dodays from the date of the consumer's do not call request.not call request.
    23. 23. Telemarketing Calls (cont’d)Telemarketing Calls (cont’d)  A consumer's request not to be calledA consumer's request not to be called must be made during the telemarketingmust be made during the telemarketing call and not be asked to call elsewherecall and not be asked to call elsewhere
    24. 24. ADAD RulesADAD Rules Automatic Dialing and Announcing DevicesAutomatic Dialing and Announcing Devices (ADADs are equipment that store and dial(ADADs are equipment that store and dial telephone numbers automatically.telephone numbers automatically.  ADADs used for the purpose of solicitationADADs used for the purpose of solicitation are prohibited which includesare prohibited which includes telemarketing for a charity, to request atelemarketing for a charity, to request a consumer to hold until a telemarketer isconsumer to hold until a telemarketer is availableavailable    
    25. 25. ADAD Rules ( cont’d )ADAD Rules ( cont’d )  ADADs are permitted when no solicitationADADs are permitted when no solicitation & for public service reasons, including& for public service reasons, including telecommunications made for emergencytelecommunications made for emergency and administration purposes by police andand administration purposes by police and fire departments, schools, hospitals, or forfire departments, schools, hospitals, or for calls to schedule appointments.calls to schedule appointments.    
    26. 26. ADAD Rules ( cont’d )ADAD Rules ( cont’d )  Additional ADAD Rules Include:Additional ADAD Rules Include:    Calling hours, identifying message,Calling hours, identifying message, display number,display number, Sequential dialing isSequential dialing is prohibited, Random dialing can be used toprohibited, Random dialing can be used to non‑published telecommunicationsnon‑published telecommunications numbers, except to emergency lines andnumbers, except to emergency lines and healthcare facilities.healthcare facilities.  ADAD equipment disconnects within 10ADAD equipment disconnects within 10 seconds of person receiving hanging upseconds of person receiving hanging up
    27. 27. Abandonment rateAbandonment rate The permissible abandonment rate forThe permissible abandonment rate for telemarketers using a predictive dialingtelemarketers using a predictive dialing device (i.e. a dialing device which uses adevice (i.e. a dialing device which uses a pre‑determined list of numbers) will bepre‑determined list of numbers) will be fixed at 5% per calendar month;fixed at 5% per calendar month; telemarketers must maintain recordstelemarketers must maintain records "permissible abandonment rate" refers to"permissible abandonment rate" refers to "dead air" calls that are abandoned when"dead air" calls that are abandoned when a PPD reaches a consumer but there is noa PPD reaches a consumer but there is no "live agent" available to handle the call at"live agent" available to handle the call at
    28. 28. Fax Restrictions - HoursFax Restrictions - Hours Fax telemarketing calls are restricted toFax telemarketing calls are restricted to weekdays (Monday to Friday) betweenweekdays (Monday to Friday) between 9:00 AM and 9:30 PM and weekends9:00 AM and 9:30 PM and weekends (Saturday and Sunday) between 10:00(Saturday and Sunday) between 10:00 AM and 6:00 PM. (the time zone of theAM and 6:00 PM. (the time zone of the customer receiving the fax telemarketingcustomer receiving the fax telemarketing calls )calls )
    29. 29. Fax Restrictions ( Cont’d)Fax Restrictions ( Cont’d)  Certain information required on top of firstCertain information required on top of first page font 12 or larger:page font 12 or larger:  The name of the telemarketer whether it isThe name of the telemarketer whether it is sending the fax on its own behalf or onsending the fax on its own behalf or on behalf of a client of the telemarketer.behalf of a client of the telemarketer.  The name of the telemarketer's clientThe name of the telemarketer's client where applicable.where applicable.  The originating date and time of the fax.The originating date and time of the fax.
    30. 30. Fax Restrictions ( Cont’d)Fax Restrictions ( Cont’d)  A local or toll‑free number voice and faxA local or toll‑free number voice and fax number allowing the customer access tonumber allowing the customer access to an employee or other representative of thean employee or other representative of the telemarketer, and where applicable, thetelemarketer, and where applicable, the client of the telemarketer, for the purposeclient of the telemarketer, for the purpose of asking questions or making a do not callof asking questions or making a do not call request.request.
    31. 31. Fax Restrictions ( Cont’d)Fax Restrictions ( Cont’d)  The name and address of an employee orThe name and address of an employee or other representative of the telemarketer,other representative of the telemarketer, or client where applicable, to whom theor client where applicable, to whom the consumer can write.consumer can write.  For any telephone numbers provided toFor any telephone numbers provided to the consumer to callthe consumer to call  The telephone call shall be answeredThe telephone call shall be answered either by a live operator or a voicemaileither by a live operator or a voicemail system to take messages for thesystem to take messages for the consumer.consumer.
    32. 32. Fax Restrictions ( Cont’d)Fax Restrictions ( Cont’d)  The voicemail must inform consumers thatThe voicemail must inform consumers that their call will be returned within three (3)their call will be returned within three (3) business days.business days.  The telemarketer or the client of theThe telemarketer or the client of the telemarketer must return consumer's calltelemarketer must return consumer's call within three (3) business days.within three (3) business days.
    33. 33. Fax Restrictions ( Cont’d)Fax Restrictions ( Cont’d)  The fax telemarketing call must display theThe fax telemarketing call must display the originating calling number or an alternateoriginating calling number or an alternate number where the call originator can benumber where the call originator can be reached (except where the numberreached (except where the number display is unavailable for technicaldisplay is unavailable for technical reasons).reasons).  Sequential dialing is prohibited.Sequential dialing is prohibited.  Fax telemarketing calls are not permittedFax telemarketing calls are not permitted to any emergency line or healthcareto any emergency line or healthcare facility.facility.
    34. 34. Fax Restrictions ( Cont’d)Fax Restrictions ( Cont’d)  DNCLs are to be maintained by theDNCLs are to be maintained by the telemarketer on its own behalf or on behalftelemarketer on its own behalf or on behalf of a client of a telemarketer and remainof a client of a telemarketer and remain active for three (3) years 31 days effectiveactive for three (3) years 31 days effective within thirty‑one (31) days from the date ofwithin thirty‑one (31) days from the date of the consumer's do not call request.the consumer's do not call request.
    35. 35. Part VI Records of Compliance:Part VI Records of Compliance:  Telemarketers need to maintain records ofTelemarketers need to maintain records of compliance, in any form, as they maintaincompliance, in any form, as they maintain other ordinary course of business records,other ordinary course of business records, in regular place of businessin regular place of business  Telemarketers must provide such recordsTelemarketers must provide such records to the CRTC within 30 days of a requestto the CRTC within 30 days of a request  In the event of a termination or sale,In the event of a termination or sale, records must be maintained by principal orrecords must be maintained by principal or successorsuccessor
    36. 36. ComplaintsComplaints  Consumers who receive unsolicitedConsumers who receive unsolicited telemarketing in violation of the rules musttelemarketing in violation of the rules must complain within 14 days of a callcomplain within 14 days of a call  Complaints may be made to the NationalComplaints may be made to the National DNCL operatorDNCL operator  List Operator makes preliminaryList Operator makes preliminary determination of whether violationdetermination of whether violation occurredoccurred  All complaints forwarded to 3All complaints forwarded to 3rdrd partyparty Complaints InvestigatorComplaints Investigator
    37. 37. PenaltiesPenalties If the investigation determines that there hasIf the investigation determines that there has been a violation, CRTC will issue anbeen a violation, CRTC will issue an enforcement Notificationenforcement Notification administrative monetary penalties (AMPs) ofadministrative monetary penalties (AMPs) of up to $15,000 on corporate violators, or upup to $15,000 on corporate violators, or up to $1,500 in the case of an individual.to $1,500 in the case of an individual.
    38. 38. Penalties ( cont’d )Penalties ( cont’d ) Whether it decides to impose an AMP, andWhether it decides to impose an AMP, and the amount of the penalty, will bethe amount of the penalty, will be determined in each case in light of thedetermined in each case in light of the following factors: (i) the nature of thefollowing factors: (i) the nature of the violations, (ii) the number and frequency ofviolations, (ii) the number and frequency of complaints and violations, (iii) the relativecomplaints and violations, (iii) the relative disincentive of the measure and (iv) thedisincentive of the measure and (iv) the potential for future violationspotential for future violations Both telemarketer & Client could be liableBoth telemarketer & Client could be liable CRTC may make public details of violatorsCRTC may make public details of violators
    39. 39. DefencesDefences  The defences to breach of the NationalThe defences to breach of the National DNCL Rules include express consent, theDNCL Rules include express consent, the due diligence defence applicable to thedue diligence defence applicable to the Unsolicited Telecommunications RulesUnsolicited Telecommunications Rules generally, the exemptions and a priorgenerally, the exemptions and a prior business or personal relationship,business or personal relationship, Common law defences such asCommon law defences such as resres judicata,judicata, mistake of fact, officially inducedmistake of fact, officially induced error, abuse of process, entrapment, anderror, abuse of process, entrapment, and de minimis.de minimis.
    40. 40. Express ConsentExpress Consent  In cases where a defendant intends to relyIn cases where a defendant intends to rely on the express consent of a call recipient,on the express consent of a call recipient, the burden is on the Telemarketerthe burden is on the Telemarketer  Unsolicited Telecommunications Rules:Unsolicited Telecommunications Rules: Part V – Express ConsentPart V – Express Consent  the forms of consent for collection, use,the forms of consent for collection, use, and disclosure of personal informationand disclosure of personal information described in Schedule 1 (Section 5),described in Schedule 1 (Section 5), Clause 4.3 of the PIPEDA Act areClause 4.3 of the PIPEDA Act are sufficient.sufficient.
    41. 41. Part V – Express ConsentPart V – Express Consent Express consent may be taken to be givenExpress consent may be taken to be given by a customer where the customerby a customer where the customer provides:provides:    written consent including signed applicationwritten consent including signed application form;form; oral confirmation verified by an independentoral confirmation verified by an independent third party or where an audio recording ofthird party or where an audio recording of the consent is retained by the carrierthe consent is retained by the carrier electronic confirmation through the use of aelectronic confirmation through the use of a toll-free number;toll-free number;
    42. 42. Part V – Express ConsentPart V – Express Consent   electronic confirmation via the Internet;electronic confirmation via the Internet; oror  consent through other methods, as longconsent through other methods, as long as an documented record of customeras an documented record of customer consent is created by the customer or byconsent is created by the customer or by an independent third party.an independent third party. 
    43. 43. PIPEDA CASESPIPEDA CASES  the forms of consent for Clause 4.3 ofthe forms of consent for Clause 4.3 of Schedule 1 of PIPEDA are sufficientSchedule 1 of PIPEDA are sufficient  Hence provides guidance to the forms thatHence provides guidance to the forms that can be usedcan be used  Will the decisions be consistent under theWill the decisions be consistent under the CRTC?CRTC?
    44. 44. Express Consent CASE 250Express Consent CASE 250  PIPEDAPIPEDA Case Summary #250Case Summary #250    Customer objects to bank's consentCustomer objects to bank's consent practices "opt-out” consentpractices "opt-out” consent  8 weeks for opt-out to take effect8 weeks for opt-out to take effect  4.3.5 consider reasonable expectations4.3.5 consider reasonable expectations  4.3.7 allows use of opt-out consent4.3.7 allows use of opt-out consent  Opt-out allowed strictly defined situationsOpt-out allowed strictly defined situations  Not sensitive informationNot sensitive information
    45. 45. Express Consent # 207Express Consent # 207  Cell phone company "opt-out" consent :Cell phone company "opt-out" consent : Called exemplaryCalled exemplary  DB privacy function suppression optionsDB privacy function suppression options i.e. "No direct mail", "No e-mail", "Noi.e. "No direct mail", "No e-mail", "No telemarketing", "No market research“telemarketing", "No market research“  non-sensitive informationnon-sensitive information  privacy brochureprivacy brochure  procedure new customer's attention onceprocedure new customer's attention once again during the activation process.again during the activation process.
    46. 46. Due Diligence DefenceDue Diligence Defence CRTC CriteriaCRTC Criteria  the telecommunication resulted from anthe telecommunication resulted from an error and that as part of its routineerror and that as part of its routine business practices it follows the rules:business practices it follows the rules:  1 established and implemented adequate1 established and implemented adequate written policies and procedures to complywritten policies and procedures to comply  2 adequate on-going training to all2 adequate on-going training to all  3 uses the National DNCL obtained from3 uses the National DNCL obtained from the National DNCL operator no more thanthe National DNCL operator no more than thirty-one (31) days priorthirty-one (31) days prior
    47. 47. Due Diligence ( cont`d)Due Diligence ( cont`d)  4 uses the telemarketer's and client4 uses the telemarketer's and client DNCL updated within 31 days prior to theDNCL updated within 31 days prior to the datedate  5 uses and maintains records5 uses and maintains records documenting a process to prevent a calldocumenting a process to prevent a call on a DNCLon a DNCL  6 the person monitors and enforces6 the person monitors and enforces compliancecompliance  7 enter into an agreement between itself7 enter into an agreement between itself and the telemarketer requiring that theand the telemarketer requiring that the
    48. 48. Selection of the TelemarketingSelection of the Telemarketing Complaints InvestigatorComplaints Investigator  Announcement Pending by the CRTCAnnouncement Pending by the CRTC asas to who will be theto who will be the Complaints InvestigatorComplaints Investigator  Pursuant to its February 15, 2008 newsPursuant to its February 15, 2008 news release, the request for proposal wasrelease, the request for proposal was open until March 25, 2008open until March 25, 2008
    49. 49. Complaints InvestigatorComplaints Investigator ChargesCharges  The Complaints Investigator will beThe Complaints Investigator will be entitled to charge telemarketers in relationentitled to charge telemarketers in relation to the investigation service, which isto the investigation service, which is expected to be levied at the time ofexpected to be levied at the time of registrationregistration    The National DNCL Rules are expectedThe National DNCL Rules are expected to come into effect on September 30,to come into effect on September 30, 2008, and the rules regarding the2008, and the rules regarding the Complaints Investigator once it isComplaints Investigator once it is operational.operational.
    50. 50. CMA Do Not ContactCMA Do Not Contact  The Canadian Marketing AssociationThe Canadian Marketing Association offers a free "Do Not Contact Service“offers a free "Do Not Contact Service“ which is limited to screening telemarketingwhich is limited to screening telemarketing from CMA participating companies only.from CMA participating companies only. Registration by mail, phone or InternetRegistration by mail, phone or Internet www.the-cma.org. After registration, itwww.the-cma.org. After registration, it takes six weeks to be effective and laststakes six weeks to be effective and lasts for three years. CMA to phase out servicefor three years. CMA to phase out service except for opt-out of receiving mail offersexcept for opt-out of receiving mail offers  Clients must continue DNCLClients must continue DNCL
    51. 51. iOptOut.caiOptOut.ca  March 28, 2008 iOptOut.ca, a free serviceMarch 28, 2008 iOptOut.ca, a free service which notifies callers selected by the userwhich notifies callers selected by the user that the individual exercises his or herthat the individual exercises his or her right under privacy laws not to receiveright under privacy laws not to receive communications from the notifiedcommunications from the notified business. Intended to cover Nationalbusiness. Intended to cover National DNCL exclusionsDNCL exclusions  CMA advised members may ignore theseCMA advised members may ignore these requests because they arerequests because they are withoutwithout authenticationauthentication
    52. 52. Time LineTime Line  September 30, 2008 Launch NationalSeptember 30, 2008 Launch National DNCLDNCL  Delegation of Investigation FunctionDelegation of Investigation Function  Communication Plan for Consumers &Communication Plan for Consumers & TelemarketersTelemarketers  Review in 3 YearsReview in 3 Years
    53. 53. SummarySummary  Core Rule: Telemarketers may not callCore Rule: Telemarketers may not call numbers on National DNCL withoutnumbers on National DNCL without express consent: Consumers to Registerexpress consent: Consumers to Register  ExemptionsExemptions  Telemarketer Registration & RulesTelemarketer Registration & Rules  Fax RulesFax Rules  Complaints & Penalties ( AMP )Complaints & Penalties ( AMP )  DefencesDefences  CMA & iOptout.ca etcCMA & iOptout.ca etc
    54. 54. Disclaimer:Disclaimer:  Thank you and please be advised that thisThank you and please be advised that this information is provided as generalinformation is provided as general information only and should not beinformation only and should not be considered legal advice. You are advisedconsidered legal advice. You are advised to consult with a lawyer to consider yourto consult with a lawyer to consider your situation.situation.
    55. 55. George C Eyre, Law OfficesGeorge C Eyre, Law Offices
    56. 56. George C. EyreGeorge C. Eyre ……has extensive experience in computer science,has extensive experience in computer science, project management and systems, and thereforeproject management and systems, and therefore understands your businessunderstands your business LAW4IT.COMLAW4IT.COM ……applies this experience to assist you in meetingapplies this experience to assist you in meeting your goals and solving and preventing problemsyour goals and solving and preventing problems
    57. 57. LAW FOR INFORMATION TECHNOLOGY…LAW FOR INFORMATION TECHNOLOGY… ……registers and prosecutesregisters and prosecutes Canadian and AmericanCanadian and American Trade MarksTrade Marks ……provides legal services in the majorprovides legal services in the major areas ofareas of Privacy, Computer & InternetPrivacy, Computer & Internet Intellectual PropertyIntellectual Property Entertainment, Multimedia & AdvertisingEntertainment, Multimedia & Advertising Corporate, Commercial & Business LawCorporate, Commercial & Business Law

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