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McCarthy Tétrault LLP / mccarthy.ca
Canadian Anti-Spam Legislation –
Overview and The Anti-Spam Provisions
Lexpert Confere...
McCarthy Tétrault LLP / mccarthy.ca
Scope of CASL
¬ Anti-SPAM
¬ Anti-spyware/malware
¬ Amendments to PIPEDA prohibiting ad...
McCarthy Tétrault LLP / mccarthy.ca
CASL History
¬ Received royal assent on December 15, 2010.
¬ Original draft regulation...
McCarthy Tétrault LLP / mccarthy.ca
What you need to consider in developing a
compliance program
¬ CASL
¬ CRTC Regulations...
McCarthy Tétrault LLP / mccarthy.ca
The usefulness of the guidance documents
¬ Following the guidance in the RIAS, the var...
McCarthy Tétrault LLP / mccarthy.ca
Is there a need to be
concerned about CASL?
13394668 6
McCarthy Tétrault LLP / mccarthy.ca
Very High Liability
¬ Administrative monetary penalties (AMPS) with caps up $10 millio...
McCarthy Tétrault LLP / mccarthy.ca
Extensive Accessorial and
Vicarious Liability
13394668
¬ Liability extends to any pers...
McCarthy Tétrault LLP / mccarthy.ca
Territorial reach
¬ The anti-spam provisions apply to any message where a
computer sys...
McCarthy Tétrault LLP / mccarthy.ca
Anti-SPAM provisions and
regulations
13394668 10
McCarthy Tétrault LLP / mccarthy.ca
The Anti-SPAM Prohibition:
Consent, Form and Content
S.6(1) It is prohibited to send o...
McCarthy Tétrault LLP / mccarthy.ca
What Messaging Systems are Covered
¬ “electronic message” means a message sent by any ...
McCarthy Tétrault LLP / mccarthy.ca
What Messaging Systems are Covered
Exemptions for:
¬Closed messaging systems: IC Regs ...
McCarthy Tétrault LLP / mccarthy.ca
What Messaging Systems are Covered
¬ IP addresses and social networks?
¬ RIAS:
¬ “Stak...
McCarthy Tétrault LLP / mccarthy.ca
What is a CEM?
A “commercial electronic message” is an electronic message that,
having...
McCarthy Tétrault LLP / mccarthy.ca
What is a CEM?
Some messages that might not be CEMs may be treated as CEMs to which th...
McCarthy Tétrault LLP / mccarthy.ca
What is a CEM?
¬ RIAS:
¬ “Under the Act, a message is only a CEM if it would be reason...
McCarthy Tétrault LLP / mccarthy.ca
What is a CEM?
¬ RIAS:
¬ “However electronic messages may come within the definition o...
McCarthy Tétrault LLP / mccarthy.ca
What is a CEM?
¬ CRTC FAQ:
¬ “A key question to ask yourself in order to determine if ...
McCarthy Tétrault LLP / mccarthy.ca
General Exceptions
Consent, Form and Content Exceptions
1. Where sender and recipient ...
McCarthy Tétrault LLP / mccarthy.ca
General Exceptions – cont’d
Consent, Form and Content Exceptions
7. Messages sent on a...
McCarthy Tétrault LLP / mccarthy.ca
B2B exception (IC Regs 3(a))
¬ 3. Section 6 of the Act does not apply to a CEM:
¬ (a) ...
McCarthy Tétrault LLP / mccarthy.ca
Respond to inquiry - exception
(IC Regs s.3(b))
¬ 3. Section 6 of the Act does not app...
McCarthy Tétrault LLP / mccarthy.ca
Comply with law - exception
(IC Regs s.3(c))
¬ 3. Section 6 of the Act does not apply ...
McCarthy Tétrault LLP / mccarthy.ca
Referrals – exception IC Reg 4(1)
Paragraph 6(1)(a) of the Act does not apply to the f...
McCarthy Tétrault LLP / mccarthy.ca
Implied consents to send CEMs
RIAS – PIPEDA Consents
“Some stakeholders have argued th...
McCarthy Tétrault LLP / mccarthy.ca
Implied consents to send CEMs
CRTC FAQ:
¬“If you obtained valid express consent prior ...
McCarthy Tétrault LLP / mccarthy.ca
Consent: Express or Implied
Implied (expires after an initial period – often 2 years):...
McCarthy Tétrault LLP / mccarthy.ca
Getting express consents to send CEMs
Express consents
¬ Once CASL comes into force, a...
McCarthy Tétrault LLP / mccarthy.ca
Getting express consents to send CEMS
CRTC Reg s.4. For the purposes of subsections 10...
McCarthy Tétrault LLP / mccarthy.ca
Meaning of “sought separately”
CRTC Guidelines:
a.What does “sought separately” mean?
...
McCarthy Tétrault LLP / mccarthy.ca
Requests for consent
CRTC Guidelines
¬ 6. The Commission considers that requests for c...
McCarthy Tétrault LLP / mccarthy.ca
What is express consent?
CRTC Guidelines
¬The CRTC provided examples of requests for c...
McCarthy Tétrault LLP / mccarthy.ca 13394668 34
McCarthy Tétrault LLP / mccarthy.ca
What is express consent?
CRTC FAQ:
¬“Mechanisms such as an unchecked opt-out box, or a...
McCarthy Tétrault LLP / mccarthy.ca 13394668 36
McCarthy Tétrault LLP / mccarthy.ca 13394668 37
McCarthy Tétrault LLP / mccarthy.ca
Conditions for use of consents
(IC Regs s.5)
¬ 5. (1) For the purposes of paragraph 10...
McCarthy Tétrault LLP / mccarthy.ca
Conditions for use of consents
(IC Regs s.5)
¬ (2) The person who obtained consent mus...
McCarthy Tétrault LLP / mccarthy.ca
Consents for affiliates
¬ RIAS:
¬ “Stakeholders also expressed concern that it would b...
McCarthy Tétrault LLP / mccarthy.ca
Unsubscribe requirements
¬ The electronic messages must: (c) set out the prescribed un...
McCarthy Tétrault LLP / mccarthy.ca
Methods of displaying information and
unsubscribe mechanism in CEMs
¬ CRTC Reg s.3(1) ...
McCarthy Tétrault LLP / mccarthy.ca
Unsubscribe requirements
¬ CRTC Reg s.3(2) The unsubscribe mechanism referred to in pa...
McCarthy Tétrault LLP / mccarthy.ca
VANCOUVER
Suite 1300, 777 Dunsmuir Street
P.O. Box 10424, Pacific Centre
Vancouver BC ...
McCarthy Tétrault LLP / mccarthy.ca
Transitional provisions
Commercial electronic messages:
¬ A person’s consent to receiv...
McCarthy Tétrault LLP / mccarthy.ca
VANCOUVER
Suite 1300, 777 Dunsmuir Street
P.O. Box 10424, Pacific Centre
Vancouver BC ...
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  1. 1. McCarthy Tétrault LLP / mccarthy.ca Canadian Anti-Spam Legislation – Overview and The Anti-Spam Provisions Lexpert Conference 13394668 Barry B. Sookman McCarthy Tétrault LLP bsookman@mccarthy.ca 416-601-7949 April 30, 2014
  2. 2. McCarthy Tétrault LLP / mccarthy.ca Scope of CASL ¬ Anti-SPAM ¬ Anti-spyware/malware ¬ Amendments to PIPEDA prohibiting address harvesting and personal information harvesting ¬ Amendments to the Competition Act prohibiting false or misleading representations in electronic messages, sender information in electronic messages, subject matter information in electronic messages, locators 13394668 2
  3. 3. McCarthy Tétrault LLP / mccarthy.ca CASL History ¬ Received royal assent on December 15, 2010. ¬ Original draft regulations were published in the summer of 2011 by the CRTC and Industry Canada. The Canadian business community raised serious objections to their strict requirements. ¬ The CRTC enacted revised regulations which were finalized on March 28, 2012. ¬ CRTC issues 2 sets of Guidelines - October, 2012 ¬ Revised draft regulations from Industry Canada on January 5, 2013. The Canadian business community, non-profit community, colleges, universities and others all raised serious concerns. ¬ Industry Canada released finalized regulations on December 4, 2013. ¬ CRTC issued FAQ - December 2013 ¬ Messaging Provisions coming into force -July 2014. Computer Programs provisions coming into force -January 2015. Private Right of Action coming into force - July 2017. 13394668 3
  4. 4. McCarthy Tétrault LLP / mccarthy.ca What you need to consider in developing a compliance program ¬ CASL ¬ CRTC Regulations ¬ Industry Canada regulations ¬ Regulatory Impact Analysis Statement ¬ CRTC Guidelines on the interpretation of the Electronic Commerce Protection Regulations (Oct. 10, 2012) ¬ CRTC Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation (Oct. 10, 2012) ¬ CRTC FAQ Canada’s Anti-Spam Legislation (December 18, 2013) 13394668 4
  5. 5. McCarthy Tétrault LLP / mccarthy.ca The usefulness of the guidance documents ¬ Following the guidance in the RIAS, the various guidelines and FAQ may be taken into consideration when the CRTC or a court determines the appropriate remedy for violating CASL. ¬ They may possibly also help in establishing the due diligence defenses. ¬ Mistake of law has been rejected as a defence to regulatory offenses. ¬ “Officially induced mistake”? 13394668 5
  6. 6. McCarthy Tétrault LLP / mccarthy.ca Is there a need to be concerned about CASL? 13394668 6
  7. 7. McCarthy Tétrault LLP / mccarthy.ca Very High Liability ¬ Administrative monetary penalties (AMPS) with caps up $10 million for an organization. (s.20(4)) ¬ Private rights of action by anyone affected by a prohibited act (s.47(1)) with liability that consists of: ¬ compensation for loss, damages and expenses; and ¬ extensive awards that are capped at: ¬ $1 million per day for breach of SPAM, malware, spyware, message routing, address and personal information harvesting, and Competition Act provisions; ¬ $1 million for each act of aiding, inducing, or procuring a breach of the SPAM, malware and spyware, and message routing provisions, plus liability up to $1 million per day for breach of SPAM, malware, spyware, and message routing provisions. ¬ Risk of class actions. ¬ Will be in force January 1, 2017. Are prior claims covered? 13394668 7
  8. 8. McCarthy Tétrault LLP / mccarthy.ca Extensive Accessorial and Vicarious Liability 13394668 ¬ Liability extends to any person who aids, induces or procures a prohibited act. (s.9) ¬ Senders of CEMs are liable for acts of their employees within the scope of their authority. (s.32, s.53) ¬ Liability extends to officers, directors, and agents if they directed, authorized, assented to, acquiesced, or participated in the prohibited act. (s.31, s.52) ¬ Risk implications too easy to pierce corporate veil; requirements for insurance? ¬ Does the risk make sense? 8
  9. 9. McCarthy Tétrault LLP / mccarthy.ca Territorial reach ¬ The anti-spam provisions apply to any message where a computer system located “in Canada is used to send or access the electronic message”. (s.12(1)) ¬ Anti-spam exception IC Regs 3(f) “if the person who sends the message or causes or permits it to be sent reasonably believes the message will be accessed in a foreign state that is listed in the schedule and the message conforms to the law of the foreign state that addresses conduct that is substantially similar to conduct prohibited under section 6 of the Act”; ¬ The computer program provisions apply “if the computer system is located in Canada at the relevant time or if the person either is in Canada at the relevant time or is acting under the direction of a person who is in Canada at the time when they give the directions”. (s.8(2)). 13394668 9
  10. 10. McCarthy Tétrault LLP / mccarthy.ca Anti-SPAM provisions and regulations 13394668 10
  11. 11. McCarthy Tétrault LLP / mccarthy.ca The Anti-SPAM Prohibition: Consent, Form and Content S.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). (2) The electronic messages must be in a form that conforms to the prescribed requirements and must: a) set out prescribed information that identifies the person who sent the message; b) set out information enabling the person to whom the message is sent to readily contact the sender; and c) set out the prescribed unsubscribe mechanism. 13394668 11
  12. 12. McCarthy Tétrault LLP / mccarthy.ca What Messaging Systems are Covered ¬ “electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message. (s1(1)) (But, excludes interactive two-way voice communication between individuals, fax messages to a telephone account, voice recordings to a telephone account. (s.6(8)) ¬ “electronic address” means an address used in connection with the transmission of an electronic message to (a) an electronic mail account; (b) an instant messaging account; (c) a telephone account; or (d) any similar account. (s.1(1)) 13394668 12
  13. 13. McCarthy Tétrault LLP / mccarthy.ca What Messaging Systems are Covered Exemptions for: ¬Closed messaging systems: IC Regs s3(d) “that is sent and received on an electronic messaging service if the information and unsubscribe mechanism that are required under subsection 6(2) of the Act are conspicuously published and readily available on the user interface through which the message is accessed, and the person to whom the message is sent consents to receive it either expressly or by implication”; ¬e-commerce portals: IC Regs s3(e) “that is sent to a limited-access secure and confidential account to which messages can only be sent by the person who provides the account to the person who receives the message”; 13394668 13
  14. 14. McCarthy Tétrault LLP / mccarthy.ca What Messaging Systems are Covered ¬ IP addresses and social networks? ¬ RIAS: ¬ “Stakeholders were also concerned that some have interpreted electronic addresses in CASL to include Internet Protocol (IP) addresses. Insofar as IP addresses are not linked to an identifiable person or to an account, IP addresses are not electronic addresses for the purposes of CASL. As a result, banner advertising on websites is not subject to CASL.” 13394668 14
  15. 15. McCarthy Tétrault LLP / mccarthy.ca What is a CEM? 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. (s.1(2)) 13394668 15
  16. 16. McCarthy Tétrault LLP / mccarthy.ca What is a CEM? Some messages that might not be CEMs may be treated as CEMs to which the form and unsubscribe provisions apply. For example: The consent requirement does not apply to a CEM that solely (s.6(6)): ¬provides a quote or estimate... if the quote or estimate was requested; ¬facilitates, completes or confirms a commercial transaction; ¬provides warranty information, product recall information or safety or security information about a product, goods or a service; ¬provides notification of factual information about (i) the ongoing subscription or use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship; ¬provides information directly related to an employment relationship or related benefit plan; ¬delivers a product, goods or a service, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction... 13394668 16
  17. 17. McCarthy Tétrault LLP / mccarthy.ca What is a CEM? ¬ RIAS: ¬ “Under the Act, a message is only a CEM if it would be reasonable to conclude that it has as its purpose or one of its purposes to encourage participation in a commercial activity. To the extent that a message is sent in a pre-existing commercial context but does not fall within the definition of a CEM provided in subsection 1(2) and subsection 1(3) of CASL, it is not a commercial electronic message for the purposes of the Act. The mere fact that a message involves commercial activity, hyperlinks to a person's website, or business related electronic addressing information does not make it a CEM under the Act if none of its purposes is to encourage the recipient in additional commercial activity. If the message involves a pre-existing commercial relationship or activity and provides additional information, clarification or completes the transaction involving a commercial activity that is already underway, it would not be considered a CEM since, rather than promoting commercial activity, it carries out that activity. Moreover, surveys, polling, newsletters, and messages soliciting charitable donations, political contributions, or other political activities that do not encourage participation in a commercial activity would not be included in the definition.” 13394668 17
  18. 18. McCarthy Tétrault LLP / mccarthy.ca What is a CEM? ¬ RIAS: ¬ “However electronic messages may come within the definition of a CEM if it would be reasonable to conclude that one of the purposes is to encourage the recipient to engage in additional commercial activities, based on, for example, the prevalence and amount of commercial content, hyperlinks or contact information. To be clear, if the purpose or one of the purposes is to advertise, promote, market or otherwise offer a product, good, service, business or gaming opportunity or interest in land, these messages are clearly CEMs. Most notably, the Act aims to limit the opportunity to advertise, market, promote, or otherwise offer products or services under the guise of a non- commercial electronic message. If it is reasonable to conclude that the message has one of those purposes, then the message would be considered to be a CEM and, subject to exclusions, the requirements of the Act would apply.” 13394668 18
  19. 19. McCarthy Tétrault LLP / mccarthy.ca What is a CEM? ¬ CRTC FAQ: ¬ “A key question to ask yourself in order to determine if your message constitutes a CEM is whether it would be reasonable to conclude that the purpose or one of the purposes of the message is to encourage participation in a commercial activity. Do not forget to examine: ¬ the content of the message, ¬ the hyperlinks in the message to website content or other database, and ¬ contact information contained in the message. ¬ Whether a message constitutes a CEM and/or a whether a particular exception or exclusion applies must be determined on a case-by-case basis in light of the specific circumstances of a given situation.” 13394668 19
  20. 20. McCarthy Tétrault LLP / mccarthy.ca General Exceptions Consent, Form and Content Exceptions 1. Where sender and recipient have a personal or family relationship (s.6(5)(a)) 2. An inquiry or application related to a person engaged in a commercial activity. (s.6(5)(b)) 3. Messages sent within an organization that concern the activities of that organization (IC Regs - 3(a)(i)). 4. Messages sent between organizations with a relationship that concern the activities of the recipient organization (IC Regs - 3(a)(ii)). 5. Messages sent in response to requests, inquiries or complaints (IC Regs - 3(b)) 6. Messages sent in response to a legal or juridical obligation, including to provide notice of a pending right and to enforce a right (IC Regs - 3(c)) 13394668 20
  21. 21. McCarthy Tétrault LLP / mccarthy.ca General Exceptions – cont’d Consent, Form and Content Exceptions 7. Messages sent on an electronic messaging service if (i) the required form, content and unsubscribe mechanism are available on the service’s user interface, and (ii) the recipient has consented to receive such messages expressly or by implication. (IC Regs – 3(d)) 8. Messages sent to a limited-access secure and confidential account to which messages can only be sent by the person who provides the account (IC Regs – 3(e)) 9. Messages that (i) a sender reasonably believes will be accessed in a listed foreign state, and (ii) conform to the laws of such foreign state addressing conduct similar to CASL. (IC Regs – 3(f)) 10. Messages sent by or on behalf of a registered charity as defined in s.248(1) of the ITA, and have as their primary purpose raising funds. (IC Regs – 3(g)) 11. Messages sent by or on behalf of a political party or organization or a person who is a candidate for publicly elected office that has as its primary purpose soliciting a contribution. (IC Regs – 3(h)) 13394668 21
  22. 22. McCarthy Tétrault LLP / mccarthy.ca B2B exception (IC Regs 3(a)) ¬ 3. Section 6 of the Act does not apply to a CEM: ¬ (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; ¬ Does it apply to messages between affiliates? 13394668 22
  23. 23. McCarthy Tétrault LLP / mccarthy.ca Respond to inquiry - exception (IC Regs s.3(b)) ¬ 3. Section 6 of the Act does not apply to a CEM: ¬ (b) that is sent in response to a request, inquiry, complaint or is otherwise solicited by the person to whom the message is sent; 13394668 23
  24. 24. McCarthy Tétrault LLP / mccarthy.ca Comply with law - exception (IC Regs s.3(c)) ¬ 3. Section 6 of the Act does not apply to a CEM: ¬ (c) that is sent to a person ¬ (i) satisfy a legal or juridical obligation, (ii) to provide notice of an existing or pending right, legal or juridical obligation, court order, judgment or tariff, ¬ (iii) to enforce a right, legal or juridical obligation, court order, judgment or tariff, or ¬ (iv) to enforce a right arising under a law of Canada, of a province or municipality of Canada or of a foreign state. 13394668 24
  25. 25. McCarthy Tétrault LLP / mccarthy.ca Referrals – exception IC Reg 4(1) Paragraph 6(1)(a) of the Act does not apply to the first commercial electronic message that is 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 individual who sends the message as well as any of those relationships with the individual to whom the message is sent and that discloses the full name of the individual or individuals who made the referral and states that the message is sent as a result of the referral. 13394668 referrer message sender recipient 25
  26. 26. McCarthy Tétrault LLP / mccarthy.ca Implied consents to send CEMs RIAS – PIPEDA Consents “Some stakeholders have argued that express consents obtained under the Personal Information Protection and Electronic Documents Act (PIPEDA) should be valid as consent under CASL. In some cases, where there is neither an exclusion nor any form of consent under CASL, some businesses that may have been compliant with PIPEDA when seeking consent to collect or to use electronic addresses to send commercial electronic messages may no longer be able to contact those addresses under CASL. Express consents, obtained before CASL comes into force, to collect or to use electronic addresses to send commercial electronic messages will be recognized as being compliant with CASL.” 13394668 26
  27. 27. McCarthy Tétrault LLP / mccarthy.ca Implied consents to send CEMs CRTC FAQ: ¬“If you obtained valid express consent prior to CASL coming into force, you will be able to continue to rely on that express consent after CASL comes into force, even if your request did not contain the requisite identification and contact information. However, all CEMs sent after CASL comes into force must contain the requisite information, meet all form requirements and contain an unsubscribe mechanism. If requesting express consent after CASL comes into force you must meet all form requirements including setting out the identification information. Please keep in mind that the legislation requires you to prove that you have obtained such express consent.” 13394668 27
  28. 28. McCarthy Tétrault LLP / mccarthy.ca Consent: Express or Implied Implied (expires after an initial period – often 2 years): Based on a closed list of categories: i. where there is an ‘existing business relationship’ or an ‘existing non-business relationship.’ ii. where the recipient has “conspicuously published” the electronic address without a statement that the person does not wish to receive unsolicited CEMs AND the message is relevant to the person’s business, role, functions or duties in a business or official capacity; iii. where the recipient has disclosed, to the person who sends the message, the electronic address without indicating a wish not to receive unsolicited CEMs, AND the message is relevant to the person’s business, role, functions or duties in a business or official capacity; 13394668 28
  29. 29. McCarthy Tétrault LLP / mccarthy.ca Getting express consents to send CEMs Express consents ¬ Once CASL comes into force, a person seeking express consent must, when requesting consent, set out clearly and simply the following information: (a) the purpose or purposes for which the consent is being sought; (b) prescribed information that identifies the person seeking consent and, if the person is seeking consent on behalf of another person, prescribed information that identifies that other person; and (c) any other prescribed information. (s.10(1)). See also (s.6(2)). ¬ Despite paragraph 10(1)(b), for the purposes of section 6, if a person is seeking express consent on behalf of a person whose identity is not known, (a) the only information that is required to be provided under that paragraph is prescribed information that identifies the person seeking consent; and (b) the person seeking consent must comply with the regulations in respect of the use that may be made of the consent and the conditions on which the consent may be used. (s. 10(2)) 13394668 29
  30. 30. McCarthy Tétrault LLP / mccarthy.ca Getting express consents to send CEMS CRTC Reg s.4. For the purposes of subsections 10(1) and (3) of the Act, a request for consent may be obtained orally or in writing and must be sought separately for each act described in sections 6 to 8 of the Act and must include (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. Problems: single request does not cover all activities; requires disclosure of information about each affiliate. 13394668 30
  31. 31. McCarthy Tétrault LLP / mccarthy.ca Meaning of “sought separately” CRTC Guidelines: a.What does “sought separately” mean? 14. The Commission considers that in order to meet the requirement of seeking consent separately, the person seeking consent must identify and obtain specific and separate consent for each act contemplated by the sections of the Act described in paragraph 13 above. Accordingly, consent for each act above must be sought separately from any other act captured by sections 6 to 8 of the Act. The Commission also considers that the activities captured by each of the above acts are distinct, as are the consequences. 15. For example, the Commission considers that persons must be able to grant their consent for the installation of a computer program while refusing to grant their consent for receiving CEMs. However, the Commission does not consider it necessary for consent to be sought separately for each instance of the acts listed in paragraph 13 above, as long as the consent request is in accordance with subsections 10(1), 10(2), 10(3), and 10(4) of the Act, where applicable. 13394668 31
  32. 32. McCarthy Tétrault LLP / mccarthy.ca Requests for consent CRTC Guidelines ¬ 6. The Commission considers that requests for consent contemplated above must not be subsumed in, or bundled with, requests for consent to the general terms and conditions of use or sale. The underlying objective is that the specific requests for consent in question must be clearly identified to the persons from whom the consent is being sought. For example, persons must be able to grant their consent to the terms and conditions of use or sale while, for instance, refusing to grant their consent for receiving CEMs. 13394668 32
  33. 33. McCarthy Tétrault LLP / mccarthy.ca What is express consent? CRTC Guidelines ¬The CRTC provided examples of requests for consent it regards as compliant as follows: ¬ 18. The Commission regards the following means as compliant: ¬ a separate tick-box for each of sections 6 to 8 of the Act, which must be proactively checked by the person whose consent is being sought in order to indicate consent (see Compliance and Enforcement Information Bulletin 2012-549); ¬ a separate icon for each of sections 6 to 8 of the Act, which must be proactively clicked by the person from whom consent is being sought; or ¬ any combination of the above. 13394668 33
  34. 34. McCarthy Tétrault LLP / mccarthy.ca 13394668 34
  35. 35. McCarthy Tétrault LLP / mccarthy.ca What is express consent? CRTC FAQ: ¬“Mechanisms such as an unchecked opt-out box, or a pre- checked opt-in box, cannot be used to obtain express consent. Express consent must be obtained through an opt-in mechanism; that is, the end-user must make a positive action to indicate that he or she provides consent. Therefore, a default toggling state that assumes consent on the part of the end-user cannot be used as a means of obtaining express consent under CASL. Further, silence or inaction on the part of the end-user cannot be construed as providing express consent. For more information please see Compliance and Enforcement Information Bulletin CRTC 2012- 549.” 13394668 35
  36. 36. McCarthy Tétrault LLP / mccarthy.ca 13394668 36
  37. 37. McCarthy Tétrault LLP / mccarthy.ca 13394668 37
  38. 38. McCarthy Tétrault LLP / mccarthy.ca Conditions for use of consents (IC Regs s.5) ¬ 5. (1) For the purposes of paragraph 10(2)(b) of the Act, a person who obtained express consent on behalf of a person whose identity was unknown may authorize any person to use the consent on the condition that the person who obtained it ensures that, in any commercial electronic message sent to the person from whom consent was obtained, ¬ (a) the person who obtained consent is identified; and ¬ (b) the authorized person provides an unsubscribe mechanism that, in addition to meeting the requirements set out in section 11 of the Act, allows the person from whom consent was obtained to withdraw their consent from the person who obtained consent or any other person who is authorized to use the consent. 13394668 38
  39. 39. McCarthy Tétrault LLP / mccarthy.ca Conditions for use of consents (IC Regs s.5) ¬ (2) The person who obtained consent must ensure that, on receipt of an indication of withdrawal of consent by the authorized person who sent the commercial electronic message, that authorized person notifies the person who obtained consent that consent has been withdrawn from, as the case may be, ¬ (a) the person who obtained consent; (b) the authorized person who sent the commercial electronic message; or (c) any other person who is authorized to use the consent. ¬ (3) The person who obtained consent must without delay inform a person referred to in paragraph (2)(c) of the withdrawal of consent on receipt of a notification of withdrawal of consent from that person. ¬ (4) The person who obtained consent must give effect to a withdrawal of consent in accordance with subsection 11(3) of the Act, and, if applicable, ensure that a person referred to in paragraph (2)(c) does the same. 13394668 39
  40. 40. McCarthy Tétrault LLP / mccarthy.ca Consents for affiliates ¬ RIAS: ¬ “Stakeholders also expressed concern that it would be difficult to satisfy identification and unsubscribe requirements proposed by the CRTC to identify all their business affiliates in a single CEM. To address this, only persons who play a material role in the content of the message or the list to whom the message is sent are required to be identified as "senders" or "affiliates" under section 6 of CASL. However, when a CEM is sent on behalf of multiple persons, such as affiliates, all of these persons must be identified in a CEM. Where it is not practicable to include this information in the body of a CEM, a hyperlink to a page on the World Wide Web containing this information that is readily accessible at no cost to the recipient may be included in the CEM.” ¬ Each affiliate that uses the same brand has to get separate consents or has to disclose information about each affiliate in a request for consent. ¬ CEMs sent by or on behalf of affiliates have similar disclosure issues with respect to formality and unsubscribe requirements. 13394668 4040
  41. 41. McCarthy Tétrault LLP / mccarthy.ca Unsubscribe requirements ¬ The electronic messages must: (c) set out the prescribed unsubscribe mechanism. (s.6(2) & (3)). ¬ The unsubscribe mechanism must (a) enable the recipient 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 sender, 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 (the address or Web page must be valid for 60 days). (s.11(1) & (2)) 13394668 41
  42. 42. McCarthy Tétrault LLP / mccarthy.ca Methods of displaying information and unsubscribe mechanism in CEMs ¬ CRTC Reg s.3(1) The information referred to in section 2 and the unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act must be set out clearly and prominently. ¬ CRTC Reg s.2(2) :If it is not practicable to include the information referred to in subsection (1) and the unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act in a commercial electronic message, that information may be provided by a link to a web page on the World Wide Web that is readily accessible by the person to whom the message is sent at no cost to them by means of a link that is clearly and prominently set out in the message. ¬ CRTC FAQ: ¬ “If it is not practicable for you to include identification, contact, and unsubscribe information directly in your message, as with text messages, the information may be posted on a web page on the World Wide Web that is readily accessible and at no cost to the recipient. The link to the web page must be clearly and prominently set out in the message.” 13394668 42
  43. 43. McCarthy Tétrault LLP / mccarthy.ca Unsubscribe requirements ¬ CRTC Reg s.3(2) The unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act must be able to be readily performed. ¬ CRTC Guideline: ¬ 11. In Telecom Regulatory Policy 2012-183, the Commission stated, among other things, that in prescribing an unsubscribe mechanism that is less prescriptive and more technology neutral than what was originally proposed, the mechanism must be consumer-friendly. Accordingly, the Commission considers that in order for an unsubscribe mechanism to be “readily performed,” it must be accessed without difficulty or delay, and should be simple, quick, and easy for the consumer to use. ¬ 12. The Commission considers that an example of an unsubscribe mechanism that can be readily performed is a link in an email that takes the user to a web page where he or she can unsubscribe from receiving all or some types of CEMs from the sender. In the case of a short message service (SMS), the user should have the choice between replying to the SMS message with the word “STOP” or “Unsubscribe” and clicking on a link that will take the user to a web page where he or she can unsubscribe from receiving all or some types of CEMs from the sender. 13394668 43
  44. 44. McCarthy Tétrault LLP / mccarthy.ca VANCOUVER Suite 1300, 777 Dunsmuir Street P.O. Box 10424, Pacific Centre Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711 CALGARY Suite 3300, 421 7th Avenue SW Calgary AB T2P 4K9 Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711 TORONTO Box 48, Suite 5300 Toronto Dominion Tower Toronto ON M5K 1E6 Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711 MONTRÉAL Suite 2500 1000 De La Gauchetière Street West Montréal QC H3B 0A2 Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 UNITED KINGDOM & EUROPE 125 Old Broad Street, 26th Floor London EC2N 1AR UNITED KINGDOM Tel: +44 (0)20 7786 5700 Fax: +44 (0)20 7786 5702 13394668
  45. 45. McCarthy Tétrault LLP / mccarthy.ca Transitional provisions Commercial electronic messages: ¬ A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until 3 years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force, ¬ (a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(10) or (13), respectively, without regard to the period mentioned in that subsection; and ¬ (b) the relationship includes the communication between them of commercial electronic messages. (s. 66) NOTE: Which consents will be grandfathered? 13394668 45
  46. 46. McCarthy Tétrault LLP / mccarthy.ca VANCOUVER Suite 1300, 777 Dunsmuir Street P.O. Box 10424, Pacific Centre Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711 CALGARY Suite 3300, 421 7th Avenue SW Calgary AB T2P 4K9 Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711 TORONTO Box 48, Suite 5300 Toronto Dominion Tower Toronto ON M5K 1E6 Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711 MONTRÉAL Suite 2500 1000 De La Gauchetière Street West Montréal QC H3B 0A2 Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 UNITED KINGDOM & EUROPE 125 Old Broad Street, 26th Floor London EC2N 1AR UNITED KINGDOM Tel: +44 (0)20 7786 5700 Fax: +44 (0)20 7786 5702 13394668
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