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Canada's Anti Spam Laws by Brandon Hastings

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Canada's Anti Spam Laws:
- Risk of High Penalties
- Due Diligence Defence
- What your staff need to know
- Free resources for further investigation and training
- Associated YouTube video

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Canada's Anti Spam Laws by Brandon Hastings

  1. 1. Canada’s Anti-Spam Laws: Commercial Electronic Communications Presented by: Brandon Hastings BBA(Dist.), JD Articled Student
  2. 2. +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  3. 3. Agenda Presentation Take-aways About CASL +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Commercial Electronic Messages (“CEMs”) What is a CEM? Which CEMs are covered by CASL? CEM Requirements Content Consent
  4. 4. Introduction • CASL: Cheat-sheet for doing business http://bit.ly/BHasCASL • Campbell Froh May & Rice LLP, Articled Student • Top-of-class business graduate • International Business Case Competitions • UBC Law Graduate • Masters-level Law Courses at National University of Singapore • ISS of BC Board Member +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  5. 5. Give useful information and overview re CEMs • General concepts • Not advice based on your particular circumstances Double-check your policies • Legal advice • CRTC • Government • Private Sector +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  6. 6. Before (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; +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com After Intra- or Inter-organizational communications with respect to ongoing relationships/projects, etc.
  7. 7. Presentation Takeaways CASL is complex and penalties may be high There is a due diligence defense The Onus is on you to prove compliance +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Seek express consent Seek legal advice for creative strategies Keep records
  8. 8. bit.ly/CFMRCRTCFAQ +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  9. 9. Section 33(1) “A person must not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.” +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  10. 10. State of CASL Up to 140,000 complaints have been received • No fines levied CFIB Survey: small business • June 25, 2014 • 38% have taken steps to comply • 15% of owners are fully aware of CASL’s requirements +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  11. 11. DEVELOPING A COMPLIANCE PROGRAM
  12. 12. Compliance and Enforcement Bulletin CRTC 2014-326 Record Keeping Compliance Risk Written Corporate Compliance Assessment Senior Management Involvement Policy +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Training Programs Auditing and Monitoring Complaint-handling System Corrective (Disciplinary) Action
  13. 13. Compliance and Enforcement Bulletin CRTC 2014-326 Due Record Keeping Diligence Defense Risk Written Corporate Compliance Assessment Senior Management Involvement Policy +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Training Programs Auditing and Monitoring Complaint-handling System Corrective (Disciplinary) Action
  14. 14. WHAT IS CASL?
  15. 15. CASL An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act Electronic Commerce Protection Regulation (CRTC) Electronic Commerce Protection Regulation (Governor in Council) +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  16. 16. CASL Timeline Dec 15, 2010 - Royal Assent July 1, 2014 - CASL in Effect +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com July 1, 2017 - CASL Enforcement Begins
  17. 17. Regulatory Impact Analysis Statement Government of Canada “The general purpose of Canada's Anti-spam Legislation (CASL) is to encourage the growth of electronic commerce by ensuring confidence and trust in the online marketplace. To do so, the Act prohibits damaging and deceptive spam, spyware, malicious code, botnets, and other related network threats.” 80% of CEMs are Spam “The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities…” +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  18. 18. Interpretation of CASL "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.“ Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Interpretation Act, RSC 1985, c I-21 +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  19. 19. CASL Private causes of action $1M fines for individuals Reputed as World’s Toughest +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com $10M fines for organizations
  20. 20. Prohibited Commercial Activities +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Alteration of Transmission Data in Electronic Messages Installation of Computer Programs on other’s Computers Sending Messages
  21. 21. COMMERCIAL ELECTRONIC MESSAGES
  22. 22. CEMs – Major Topics What is a CEM? Which CEMs are covered by CASL? +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Which are exempt? Content Requirements of CEMs Identification Requirement Unsubscribe Consent Requirements Express Implied
  23. 23. +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  24. 24. Prohibitions on CEMs • “send or cause or permit to be sent” – or “aid, induce, procure or cause to be procured” • a “commercial electronic message” • to “an electronic address” +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  25. 25. Who is Liable? An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in A person is liable for a violation that is committed by their employee acting within the scope of their employment… +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  26. 26. Electronic Address “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. CASL does not catch communications which the audience must “pull.” (eg. websites, blogs, social media posts, etc.) +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  27. 27. Commercial Electronic Message Commercial Electronic Messages Purchase Sell Ask for Consent +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Barter Lease Invest Gaming Promote Person sent via telecommunications Promote Product or Service despite expectation of profit “reasonable to conclude has as … one of its purpose, to encourage participation in a commercial activity”
  28. 28. May be exempt from CASL if CEM is: solely a request for information regarding commercial activity a family or personal message +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com a communication with respect to ventures in common (internal or external) responses to inquiries, complaints, etc. pursuant to legal right, obligation, enforcement communication on a third-party or sender-provided service message for fundraising by a charity or political party first message of referral (specify who referred, and that it’s a referral) fax, two-way voice between individuals
  29. 29. Foreign States • 116 States • Including USA, UK, China • Excluding Mexico • “Reasonably believes… will be accessed” +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  30. 30. +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  31. 31. CASL’s Many Exceptions Read up on/seek advice if you plan to rely on exceptions +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  32. 32. CONTENT REQUIREMENTS
  33. 33. +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  34. 34. 60 day Validity Unsubscribe Mechanism • Accessible through web browser • Accessible by same means message was sent • “Able to be readily performed” Identification Information • Must identify: • originator • sender • Include originator’s: • mailing address • phone, email, URL +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  35. 35. +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  36. 36. CONSENT REQUIREMENTS
  37. 37. The Dark Side of Consent “Must ensure” that unsubscribed “without delay,” and “no later than 10 business days after the indication has been sent” +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  38. 38. CASL Exempt Consent Exempt +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Implied Consent Express Consent
  39. 39. Exceptions to Consent Requirements (Content Req’s Still Apply) referral (special rules) reply to request for quote +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com facilitates previously agreed-to transaction incl. delivery of goods/services info re warranty, recall, safety, or security of product/service recipient uses, used or bought info re ongoing subscription, loan, account, or membership info re existing employment relationship
  40. 40. EXPRESS CONSENT
  41. 41. +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  42. 42. Express Consent Separately Sought |Opt-in |Keep Records +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  43. 43. +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  44. 44. IMPLIED CONSENT
  45. 45. Networkers and Salespeople Rejoice! “disclosed” “conspicuously published” without statement prohibiting CEMs +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com messages related to capacity in that role
  46. 46. Up to 2 Years after post-July 1, 2014 Catalyzing Event Sender • Political Party, Charity • Not-for-profit +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Recipient • Donated, Volunteered • End of Membership
  47. 47. Up to 2 Years after post-July 1, 2014 Catalyzing Event Bought or Bartered for Leased Goods or Services Land Accepted Business Investment Gaming Opportunity Formed Written Contract Respond to an inquiry related to any of these (within 6 months of inquiry) +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  48. 48. SHARING CONSENT
  49. 49. •Gym Originator •Food Store •Supplements Store Third Parties +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  50. 50. The Unknown Third Party Gym Unsubscribe to Gym Food Store Unsubscribe to all 3rd Parties +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  51. 51. DATA COLLECTION
  52. 52. Data Collection • Contact Info • When / Catalyzing Event • Type of Relationship • Express Consent? • Proof of Express Consent – Audio recording – Third-party verification – Database + processes +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  53. 53. CONCLUSION
  54. 54. Existing Business and non-Business Relationships Personal Relationships Cold-callers Networkers Customers Explicit Consent +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  55. 55. Presentation Takeaways CASL is complex and penalties may be high There is a due diligence defense The Onus is on you to prove compliance +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com Seek express consent Seek legal advice for creative strategies Keep records
  56. 56. Resources • CRTC’s CASL Website: www.crtc.gc.ca/antispam • CRTC Articles: – Guidelines to help businesses develop corporate compliance programs: Information Bulletin CRTC 2014-326 – Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation: Information Bulletin CRTC 2012-549 – Guidelines on the interpretation of the Electronic Commerce Protection Regulations: Information Bulletin CRTC 2012-548 • My article: http://bit.ly/BHasCASL +1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com
  57. 57. THANK YOU

Editor's Notes

  • Due diligence defence – s 33
  • First ~2 minutes only
  • Yes, this applies to officers, directors of a company
  • If you wish to play in the grey areas of CASL – seek advice
  • If Catalyzing event before July 1, 2014 -> Grace Period until July 1, 2017
  • If Catalyzing event before July 1, 2014 -> Grace Period until July 1, 2017
  • Let’s look at the groups that can still do business in the way they are accustomed to…
  • Due diligence defence – s 33
  • ×