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Preparing for Canadian Anti-Spam Legislation
 

Preparing for Canadian Anti-Spam Legislation

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The presentation is about preparing for the upcoming Canadian Anti-Spam Legislation. Learn what CASL is, the timing of it’s implementation and how it will apply to commercial email. We will review ...

The presentation is about preparing for the upcoming Canadian Anti-Spam Legislation. Learn what CASL is, the timing of it’s implementation and how it will apply to commercial email. We will review specific case studies to better define consent requirements and exceptions to those requirements.

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  • Electronic Messages include <br /> An email account <br /> A telephone message or text <br /> An instant messaging account <br /> Any similar account <br />
  • Has to be commercial – broader than CAN SPAM, no primary purpose <br /> <br /> Electronic Messages include <br /> An email account <br /> A telephone account; text messages (voice messages are excluded) <br /> An instant messaging account <br /> Any similar account <br /> <br /> Non-exhaustive list <br /> <br /> Sent to or from a computer system located in Canada. <br /> Exclusion for messages sent from Canada to another country with belief it will comply with another countries anti-spam legislation. Ex. The US.
  • Enforcement is done by Industry Canada and the CRTC. <br /> <br /> Broad investigative powers <br /> Administrative monetary penalties. <br /> Up to $10 Million per violation <br /> <br /> Competition Bureau (CB) <br /> Amends the Competition Act to include violations respecting: <br /> • Misleading and deceptive practices/ representations, including false headers, subject lines, etc... <br />
  • Consent must be auditable. You must be able to prove where your leads gave consent when called upon. <br />
  • Requires an action by the recipient. <br /> No check boxes. <br /> Never expires but can be revoked through an unsubscribe action. <br /> <br /> Clearly and conspicuously state purpose for obtaining consent. <br /> Clearly identify who is being given consent. If you are getting consent for a business partner you must state that business partner’s name . <br /> Provide contact information on behalf of who is getting consent. <br /> Inform individual that they can unsubscribe <br /> <br /> <br /> Image posted on CRTC website. <br /> Don’t NEED a check box. Check boxes are relevant where you may already have their email address.
  • Existing Business Relationship <br /> ‒  Recipient purchased, leased or engaged in bartering of virtually anything from the sender within the past 2 years <br /> ‒  Recipient accepted a business, investment or gaming opportunity offered by the sender within the past 2 years <br /> ‒  Recipient and the sender entered into a written contract in respect of any of the above and the contract is either currently in existence or expired within the past 2 years <br /> <br /> <br /> Existing Non-Business Relationship <br /> ‒  The sender is a club, association or voluntary organization and the recipient is or was a member in the past two years <br /> Less relevant for business senders <br /> <br /> A conspicuously published address. <br /> Website <br /> Directory <br /> Provided to the sender <br /> Has to be relevant to the person in their professional business capacity – relevant in a B2B <br /> <br /> May be looser than Terms of Service of some service providers. <br /> May not want to continue sending to inactives – even if it is still OK under the law
  • A business has six months where there is permission to send commercial email after an inquiry, which is converted to a two-year period of implied consent if the sender closes business with that recipient.
  • • Data management will be key to compliance. <br /> Review existing data and groups consents: <br /> •  Explicit * <br /> •  Implied <br /> Inquiry <br /> <br /> •  Third party <br /> •  Unknown <br /> •  None <br /> <br /> • Identify gaps in your database fields or the information you are tracking: <br /> •  Consent date <br /> •  Consent level <br /> •  Consent source <br /> o Website <br /> o IP address <br /> •  Last implied date <br /> •  Last contact date
  • Use this as a Marketing Opportunity! Show that you respect your recipients. <br />
  • a pre-checked box would be considered "opt-out" <br /> <br /> Maintain image of the form that was filled out. Online or offline. <br /> <br /> <br />
  • a pre-checked box would be considered "opt-out" <br /> <br /> Onerous requirements. <br /> CRTC backed off and these are “suggestions” <br /> <br /> Date, time, method, agent on the phone – whatever records you can maintain.
  • Where an existing business relationship or non-business relationship exists as of July 1, 2014, regardless of when the relationship began, implied consent is automatically refreshed until July 1, 2017 <br /> <br /> To rely on the provision, there must have been prior communication of CEMs between sender and recipient <br />
  • List Rental situations <br /> <br /> Must be relevant to original business where consent was given. <br /> <br />
  • CASL only applies to Commercial Electronic Messages <br /> <br /> CASL does not apply to messages that are sent: <br /> 1.  Within or between business, where there’s an ongoing relationship; <br /> 2.  In response to a request; <br /> 3.  To enforce a legal right or obligation; <br /> 4.  Via closed messaging systems; <br /> a)  Proprietary system <br /> b)  Messaging systems where ID and unsubscribe included on <br /> platform <br /> 5.  To a foreign jurisdiction in compliance with their spam law; (see Schedule 1 in the ECPR) <br /> 6.  By registered charities raising funds <br /> 7.  By political candidates or organizations, soliciting political contributions <br /> <br /> Personal email – ma protect the Forward to a Friend functions.
  • CEMs – Because the email contains some commercial purpose. <br /> <br /> Internal Communications within an Organization <br /> ‒  One member of an organization sends a CEM to another member of the organization <br /> ‒  The CEM concerns the activities of the organization <br /> ‒  Member includes: <br /> Employee <br /> Representative <br /> Consultant <br /> franchisee <br /> ‒  Key issue: how directly must the CEM “concern the activities” of the organization? <br /> <br /> Organization-to-Organization Communications <br /> ‒  A member of an organization sends a CEM to a member of another organization <br /> ‒  The two organizations have “a relationship” <br /> ‒  CEM concerns the activities of the receiving organization <br /> ‒  The term “relationship” is undefined – but clearly must be something other than the other types of “relationships” already defined in CASL <br /> ‒  Key issues: <br /> what kind of relationship must exist between the organizations? <br /> how directly must the CEM “concern the activities” of the other organization? <br /> <br /> Inquiry, Application, Solicited Communications <br /> CEM sent to a person engaged in a commercial activity and consists solely of an inquiry or application related to that activity <br />
  • CEMs – Because the email contains some commercial purpose. <br /> <br /> Internal Communications within an Organization <br /> ‒  One member of an organization sends a CEM to another member of the organization <br /> ‒  The CEM concerns the activities of the organization <br /> ‒  Member includes: <br /> Employee <br /> Representative <br /> Consultant <br /> franchisee <br /> ‒  Key issue: how directly must the CEM “concern the activities” of the organization? <br /> <br /> Organization-to-Organization Communications <br /> ‒  A member of an organization sends a CEM to a member of another organization <br /> ‒  The two organizations have “a relationship” <br /> ‒  CEM concerns the activities of the receiving organization <br /> ‒  The term “relationship” is undefined – but clearly must be something other than the other types of “relationships” already defined in CASL <br /> ‒  Key issues: <br /> what kind of relationship must exist between the organizations? <br /> how directly must the CEM “concern the activities” of the other organization? <br /> <br /> Inquiry, Application, Solicited Communications <br /> CEM sent to a person engaged in a commercial activity and consists solely of an inquiry or application related to that activity <br />
  • Yes, they are CEMs – Because the email contains some commercial purpose. <br /> <br /> Inquiry, Application, Solicited Communications <br /> CEM sent to a person engaged in a commercial activity and consists solely of an inquiry or application related to that activity <br /> <br /> <br /> Internal Communications within an Organization <br /> ‒  One member of an organization sends a CEM to another member of the organization <br /> ‒  The CEM concerns the activities of the organization <br /> ‒  Member includes: <br /> Employee <br /> Representative <br /> Consultant <br /> franchisee <br /> ‒  Key issue: how directly must the CEM “concern the activities” of the organization? <br /> <br /> Organization-to-Organization Communications <br /> ‒  A member of an organization sends a CEM to a member of another organization <br /> ‒  The two organizations have “a relationship” <br /> ‒  CEM concerns the activities of the receiving organization <br /> ‒  The term “relationship” is undefined – but clearly must be something other than the other types of “relationships” already defined in CASL <br /> ‒  Key issues: <br /> what kind of relationship must exist between the organizations? <br /> how directly must the CEM “concern the activities” of the other organization? <br /> <br />
  • Conspicuous Publication of Electronic Address <br /> ‒  Recipient has conspicuously published the electronic address to <br /> which the CEM is sent <br /> ‒  Publication not accompanied by a statement that the recipient does not wish to receive unsolicited CEMs at the electronic address <br /> ‒  CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity <br /> ‒  The term “conspicuously published” is not defined <br /> ‒  Similar exemption in Australian and New Zealand anti-spam laws <br /> ‒  Key issue: determining when a CEM is “relevant to” the recipient’s role in a business or official capacity <br /> <br /> Disclosure of Electronic Address <br /> ‒  Recipient has disclosed to the sender the electronic address to which the CEM is sent <br /> ‒  Recipient has not indicated his or her wish not to receive unsolicited CEMs <br /> ‒  CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity <br /> ‒  One of the widest (and least talked about) exemptions <br /> ‒  Potentially broader than existing relationship exemptions <br /> ‒  Key issue: determining when a CEM is “relevant to” the recipient’s role in a business or official capacity <br /> <br /> Consent Received by Another <br /> ‒  A person can seek consent to send CEMs on behalf of one or more <br /> other parties <br /> ‒  CEM sent on basis of such consent must: <br /> Comply with ordinary formality requirements <br /> Identify the person who obtained the consent <br /> Include an unsubscribe mechanism that allows the recipient to withdraw consent from the following parties: <br /> the person who obtained the express consent <br /> any other person who is authorized to use the express consent <br /> ‒  Withdrawal of consent must be communicated to affected parties <br /> Existing Business Relationship <br /> ‒  Recipient purchased, leased or engaged in bartering of virtually anything from the sender within the past 2 years <br /> ‒  Recipient accepted a business, investment or gaming opportunity offered by the sender within the past 2 years <br /> ‒  Recipient inquired or applied for anything mentioned above from the sender within the past 6 months <br /> ‒  Recipient and the sender entered into a written contract in respect of any of the above and the contract is either currently in existence or expired within the past 2 years <br /> <br /> Information about Ongoing Use or Relationship <br /> CEM solely provides “notification of factual information” about: <br /> the ongoing use or purchase by the recipient of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the sender; or <br /> the ongoing subscription, membership, account, loan or similar relationship of the recipient <br /> <br /> Commercial Transaction in Progress <br /> ‒  CEM solely facilitates, completes or confirms a commercial transaction that recipient agreed to enter into with the sender <br /> ‒  Necessary if you have no existing business or non-business relationship within the relevant time period requirements to allow consent to be implied <br /> <br /> <br />
  • Conspicuous Publication of Electronic Address <br /> ‒  Recipient has conspicuously published the electronic address to <br /> which the CEM is sent <br /> ‒  Publication not accompanied by a statement that the recipient does not wish to receive unsolicited CEMs at the electronic address <br /> ‒  CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity <br /> ‒  The term “conspicuously published” is not defined <br /> ‒  Similar exemption in Australian and New Zealand anti-spam laws <br /> ‒  Key issue: determining when a CEM is “relevant to” the recipient’s role in a business or official capacity <br /> <br /> Disclosure of Electronic Address <br /> ‒  Recipient has disclosed to the sender the electronic address to which the CEM is sent <br /> ‒  Recipient has not indicated his or her wish not to receive unsolicited CEMs <br /> ‒  CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity <br /> ‒  One of the widest (and least talked about) exemptions <br /> ‒  Potentially broader than existing relationship exemptions <br /> ‒  Key issue: determining when a CEM is “relevant to” the recipient’s role in a business or official capacity <br /> <br /> Consent Received by Another <br /> ‒  A person can seek consent to send CEMs on behalf of one or more <br /> other parties <br /> ‒  CEM sent on basis of such consent must: <br /> Comply with ordinary formality requirements <br /> Identify the person who obtained the consent <br /> Include an unsubscribe mechanism that allows the recipient to withdraw consent from the following parties: <br /> the person who obtained the express consent <br /> any other person who is authorized to use the express consent <br /> ‒  Withdrawal of consent must be communicated to affected parties <br /> Existing Business Relationship <br /> ‒  Recipient purchased, leased or engaged in bartering of virtually anything from the sender within the past 2 years <br /> ‒  Recipient accepted a business, investment or gaming opportunity offered by the sender within the past 2 years <br /> ‒  Recipient inquired or applied for anything mentioned above from the sender within the past 6 months <br /> ‒  Recipient and the sender entered into a written contract in respect of any of the above and the contract is either currently in existence or expired within the past 2 years <br /> <br /> Information about Ongoing Use or Relationship <br /> CEM solely provides “notification of factual information” about: <br /> the ongoing use or purchase by the recipient of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the sender; or <br /> the ongoing subscription, membership, account, loan or similar relationship of the recipient <br /> <br /> Commercial Transaction in Progress <br /> ‒  CEM solely facilitates, completes or confirms a commercial transaction that recipient agreed to enter into with the sender <br /> ‒  Necessary if you have no existing business or non-business relationship within the relevant time period requirements to allow consent to be implied <br /> <br /> <br />
  • Conspicuous Publication of Electronic Address <br /> ‒  Recipient has conspicuously published the electronic address to which the CEM is sent <br /> ‒  Publication not accompanied by a statement that the recipient does not wish to receive unsolicited CEMs at the electronic address <br /> ‒  CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity <br /> ‒  The term “conspicuously published” is not defined <br /> ‒  Similar exemption in Australian and New Zealand anti-spam laws <br /> ‒  Key issue: determining when a CEM is “relevant to” the recipient’s role in a business or official capacity <br /> <br /> Disclosure of Electronic Address <br /> ‒  Recipient has disclosed to the sender the electronic address to which the CEM is sent <br /> ‒  Recipient has not indicated his or her wish not to receive unsolicited CEMs <br /> ‒  CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity <br /> ‒  One of the widest (and least talked about) exemptions <br /> ‒  Potentially broader than existing relationship exemptions <br /> ‒  Key issue: determining when a CEM is “relevant to” the recipient’s role in a business or official capacity <br /> Existing Business Relationship <br /> ‒  Recipient purchased, leased or engaged in bartering of virtually anything from the sender within the past 2 years <br /> ‒  Recipient accepted a business, investment or gaming opportunity offered by the sender within the past 2 years <br /> ‒  Recipient inquired or applied for anything mentioned above from the sender within the past 6 months <br /> ‒  Recipient and the sender entered into a written contract in respect of any of the above and the contract is either currently in existence or expired within the past 2 years <br /> <br /> Information about Ongoing Use or Relationship <br /> CEM solely provides “notification of factual information” about: <br /> the ongoing use or purchase by the recipient of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the sender; or <br /> the ongoing subscription, membership, account, loan or similar relationship of the recipient <br /> <br /> Commercial Transaction in Progress <br /> ‒  CEM solely facilitates, completes or confirms a commercial transaction that recipient agreed to enter into with the sender <br /> ‒  Necessary if you have no existing business or non-business relationship within the relevant time period requirements to allow consent to be implied <br /> <br /> <br />
  • Conspicuous Publication of Electronic Address <br /> ‒  Recipient has conspicuously published the electronic address to which the CEM is sent <br /> ‒  Publication not accompanied by a statement that the recipient does not wish to receive unsolicited CEMs at the electronic address <br /> ‒  CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity <br /> ‒  The term “conspicuously published” is not defined <br /> ‒  Similar exemption in Australian and New Zealand anti-spam laws <br /> ‒  Key issue: determining when a CEM is “relevant to” the recipient’s role in a business or official capacity <br /> <br /> Recipients are covered by Spain’s DPA <br /> <br /> Additional related exemptions: <br /> ‒  Third-party referral <br /> CEM must include the full name of the individual who made the referral <br /> <br />
  • “CASL puts a legal framework around engagement, and defines what have been best practices for years.” <br /> <br /> Common sense approach <br /> <br /> <br /> Knowingly, Intentionally, Repeatedly violate rules <br /> <br />
  • Shaun is from an Ottawa based law firm