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Preparing for Canada's Anti-Spam Legislation
 

Preparing for Canada's Anti-Spam Legislation

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Preparing for Canada's Anti-Spam Legislation Preparing for Canada's Anti-Spam Legislation Presentation Transcript

  • Preparing for Canada’s Anti-spam Legislation Shaun Brown - nNovation LLP Marketo May 19, 2014 1
  • Preparing for CASL Marketo - May 19, 2014 What we will cover • What is it? • Where is it? • Who enforces? • Key issues • Getting prepared • Focus on electronic messaging rules • Based on most recent regulations and regulator guidance • Coincides with Campaign and Database Checklists • Q&A 2
  • Preparing for CASL Marketo - May 19, 2014 What is CASL? Anti- malware Anti- hacking Anti- spam Rules for sending Commercial Electronic Messages (CEMs) Rules for installation of computer programs Prohibition against unauthorized alteration of transmission data 3
  • Preparing for CASL Marketo - May 19, 2014 Where is CASL? Dec. 2010: Royal Assent Mar. 2012: Final CRTC Regs Oct. 2012: CRTC Guidelines Dec. 2013: IC Regs Final Jul. 2014: CASL (mostly) in force Jan. 2015: Rules re: Computer Programs in force Jul. 2017: Private Right of Action in force 4
  • Preparing for CASL Marketo - May 19, 2014 Primary requirements 1. Consent - Either express or implied - Several exceptions 2. Identification - CEM must identify sender and include prescribed contact info 3. Unsubscribe - CEM must include unsubscribe mechanism 5
  • Preparing for CASL Marketo - May 19, 2014 Reviewing campaigns: process 1. Application 2. Exclusions (complete) 3. Referrals 4. Exclusions (from consent) 5. Implied Consent 6. Express Consent 7. Sending Requirements 6
  • Preparing for CASL Marketo - May 19, 2014 Step 1: Application • CASL applies to messages that are – “Commercial”: reasonable to conclude that one of its purposes is to encourage participation in commercial activity – “Electronic”: sent to an electronic address (email, IM, Telephone, or other “account”) • Exception: voice and fax messages excluded – Sent to or from a computer system located in Canada • Exception: does not apply to message sent to foreign jurisdiction with anti-spam legislation 7
  • Preparing for CASL Marketo - May 19, 2014 Step 2: Exclusions (complete) 1. Personal/family rel’p 2. Inquiry or application 3. Within organizations 4. Between orgs. with a rel’p 5. In response to inquiry or request 6. To satisfy legal obligation 7. To provide notice of legal rights 8. Certain messaging platforms and accounts 9. To foreign states with anti- spam legislation 10. Fundraising by charities/political parties/candidates 8
  • Preparing for CASL Marketo - May 19, 2014 Step 3: Referrals Sender Recipient Person who makes referral 9
  • Preparing for CASL Marketo - May 19, 2014 Step 4: Exclusions (from consent) Consent not required for a CEM that solely: 1. Provides a quote or estimate 2. Facilitates, complete or confirm a commercial transaction previously agreed to 3. Provides information pertaining to warranty, recall, safety or security about a product purchased or used by the recipient 4. Is about the ongoing use, purchase of subscription, membership, account, loan or similar ongoing relationship 5. Provides information about an employment relationship or related benefit plan 6. Delivers goods or services, including product updates or upgrades 10
  • Preparing for CASL Marketo - May 19, 2014 Step 5: Implied consent Four categories of implied (i.e., deemed) consent: 1. Existing business rel’p (e.g., purchase) – Time limited (2 yrs for purchase, 6 months for inquiry) 2. Existing non-business rel’p – Less relevant for business 3. Conspicuous publication – More relevant to B2B; conditions attached 4. Electronic address provided to sender by recipient – More relevant to B2B; conditions attached 11
  • Preparing for CASL Marketo - May 19, 2014 Step 6: When seeking express consent... • Clearly and simply describe the purpose for obtaining consent – i.e., up front, at time of seeking consent. Not buried in privacy policy. • ID person seeking consent or person whose behalf consent is sought • Provide prescribed identifying/contact information • Inform individual that they can unsubscribe • Ensure that the process for obtaining consent qualifies as "express" consent (CRTC has said no pre-checked boxes) 12
  • Preparing for CASL Marketo - May 19, 2014 CRTC views on “toggling”
  • Preparing for CASL Marketo - May 19, 2014 Retaining evidence of consent • Sender bears burden of proving consent • Date/time stamp, URL, IP addresses • Image of forms (web, paper) 14
  • Preparing for CASL Marketo - May 19, 2014 Step 7: When sending a CEM... • ID person sending or person whose behalf message is sent • Prescribed identifying/contact information • Unsubscribe mechanism • Avoid false or misleading representations in message, subject line, sender information, etc. 15
  • Preparing for CASL Marketo - May 19, 2014 Enforcement • Canadian Radio-television Telecommunications Commission (CRTC) • Role as enforcement agency is relatively new (began with Unsolicited Telecommunications Rules) • Broad investigatory powers • Ability to impose administrative monetary penalties (AMPs); up to $10 million/violation • Private right of action available to anyone affected by a violation (in force July 1, 2017) 16
  • Preparing for CASL Marketo - May 19, 2014 Liability flow 17 Directors/ Officers CorporationEmployees Vicarious Liability D&O Liability Service Providers, Partners, Affiliates, etc. Prohibited to aid, induce, procure or cause to be procured a violation
  • Preparing for CASL Marketo - May 19, 2014 Reconfirmation: considerations • Database Checklist • Transitional provision • “Grandfathering” consent under PIPEDA (nNovation LLP e- Marketing law blog) 18
  • Preparing for CASL Marketo - May 19, 2014 Getting prepared: essential tasks 1. Take inventory (campaigns, databases) 2. Review data sources and sign-up processes 3. Consider internal governance re: marketing and compliance 4. Manage liability arising out of relationships; review agreements with partners, providers, customers, etc. 5. Assess overall risk, develop policies and take action in accordance with risk tolerance 19
  • Preparing for CASL Marketo - May 19, 2014 Resources • nNovation LLP e-Marketing Law blog • Canada’s Anti-Spam Legislation, http://www.canlii.org/en/ca/laws/stat/sc- 2010-c-23/latest/sc-2010-c-23.html • Electronic Commerce Protection Regulations (Industry Canada) http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00211.html • Electronic Commerce Protection Regulations (CRTC), http://www.crtc.gc.ca/eng/archive/2012/2012-183.htm • CRTC Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC) (CRTC 2012-548), http://www.crtc.gc.ca/eng/archive/2012/2012-548.htm • CRTC Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation (CRTC 2012-549), http://www.crtc.gc.ca/eng/archive/2012/2012-549.htm 20
  • Preparing for CASL Marketo - May 19, 2014 Contact Shaun Brown nNovation LLP sbrown@nnovation.com Twitter: @emarketinglaw 613.656.1297 21