Transcript Law & Justice on the Internet

Canada Anti-Spam Legislation (CASL)
Cloudy with a Chance of Spam
June 18, 2014
St. John’s Institute, Edmonton, AB
Presented by
Joan Braun, L.L.B., M.S.W.
Teresa Mitchell, L.L.B.
Lesley Conley, Program Coordinator
Centre for Public Legal Education Alberta
www.cplea.ca
Introductions
Who Are We?
What Do We Do?
CPLEA uses a collaborative approach to develop
materials and strategies for teaching people about
the law.
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1. To Gain a Basic Understanding of CASL
2. Learn about Tips and Tools to Prepare
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1.
Overview of CASL
2.
Website and Resources
3.
What’s next
www.law-faqs.org/wiki/index.php/Canada_Anti-Spam_CASL
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 Overview
 General intent of the legislation
 Wide-ranging coverage
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What is a CEM?
Transaction or act of a commercial character
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
Exceptions for Registered Charities

Consent – Express & Implied

Existing Business & Non-Business Relationships

Dealing with Third Parties

Subscribe & Unsubscribe Mechanisms

Tracking (options)

Automated Message Systems
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 What do the regulations say…..
 Raising funds vs. Fundraising
IMPORTANT: This exception does not apply to Not-for-Profits or Registered
Amateur Athletic Associations.
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
Soliciting donations

Tickets to dinners / golf tournaments & other fundraising events

Lotteries

Fun runs, etc.

Promoting events by arts & culture groups through ticket sales

Promoting charitable events even if on a cost-recovery basis

Newsletters that promote fundraising events, even if they list
corporate sponsors
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Consent is the key concept to be aware of in CASL
 Express Consent
 Implied Consent
 What’s excluded …..
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 Recipient must voluntarily agree to receive CEM
 Consent can be verbal or written
 Must be documented
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Can be implied in three situations:

where there is an existing business relationship, or an existing
non-business relationship

where the recipient has “conspicuously published” their
electronic address

where the recipient has disclosed their electronic address to
the person who is sending the message;
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SENDER of a CEM must:
 Clearly indentify self
 Clearly state the purpose of the CEM
 Give contact information
 State that consent can be withdrawn at any time
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An organization has an existing non-business relationship with a recipient
if the recipient has, within the previous two years:

In the case of a registered charity – made a donation or gift, or has
performed volunteer work for the charity

In the case of a not-for-profit - has been a member of the
organization, such as a club or association.
Each time that a recipient makes a donation or gift, or volunteers, the
two-year implied consent period begins again.
It is the same case for not-for-profits. Each time a member renews, the
two-year implied consent period begins again.
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An existing business relationship between the sender of the CEM and
the recipient will be found if, within the previous two years the
recipient has:

purchased, leased or bartered a produce, goods,
services, land or an interest in land from the sender;

accepted a business, investment or gaming opportunity
offered by the sender;

entered into a written contract or made inquiries about
other matters with the sender for another matter not
listed above;

within the previous six months, made an inquiry or an
application about any of the matters listed above.
………
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Rolling time frame….
The existing business relationship is renewed with
each transaction, in that the two-year existing
business relationship starts over.
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There are a number of CEMs to which CASL does not apply.
These include messages sent:

to someone with whom the sender has a personal or family
relationship;

to someone in a commercial activity making an inquiry or application
about the activity, such as quotes or estimates;

to another employee, representative, consultant or franchisee of an
organization about the activities of the organization;
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
to an employee, representative, consultant or franchisee of
another organization, if the organizations have a relationship
and the message is about the activities of the receiving
organization;

in response to a request, question or complaint, or is
otherwise initiated by the recipient;

by or on behalf of a registered charity and the message has
as its primary objective raising funds for the charity;

by or on behalf of a political party or a political candidate for
publicly elected office, for the primary purpose of obtaining
a donation or contribution.
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There is another type of CEM which is excluded from the provisions
of CASL. There are two requirements for CEMs that fall under this
exception:
1.
They must conform to the rules about providing sender identity
information
and …
2.
They must have an unsubscribe mechanism so that the
recipient can opt not to receive future CEMs
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These messages must solely:

facilitate, complete or confirm a commercial transaction that the
recipient previously agreed to enter into with the sender;

provide warranty, product recall or safety and security information
about a product or service that the recipient has used or purchased;

provide product, goods or services updates or upgrades that the
recipient is entitled to receive;

provide ongoing information about a subscription, loan, membership or
account that the recipient is currently participating or enrolled in;

provide information directly related to an employment relationship or
benefit plan in which the recipient is involved or enrolled.
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Limited exemption for 3rd party referrals following a
referral by someone who has:




an existing business relationship;
an existing non-business relationship;
a personal relationship; or
family relationship with the individual who sends
the message as well as these relationships with the
individual to whom the message is sent.
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CEM Requirements

must disclose the full name of the individual or
individuals who made the referral and state that the
message is sent as a result of the referral

must also comply with the sender identity information
and unsubscribe mechanism requirements.

Only one 3rd party referral message may be sent under
these terms, so it should contain a request for future
consent.
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Be aware of what contracts are in place in which the 3rd party
may be sending CEMs on your organizations behalf
Examples:






Advertising agencies
Social media management
Sales or distribution agents
Lobbyists, public relations or media advisors
Professional fundraising companies
Suppliers of referral / contact lists
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Review all contracts:

Make sure that any CEMs sent on your organization’s behalf are
CASL compliant

Contracts should contain clauses that ensure that the service
provider will meet all applicable CASL requirements, and will
notify you if it is cited by CRTC for a violation

Ensure service provider will keep your organization indemnified
for any costs or damages arising out of a breach.
You should also ask your service provider to inform your
organization of all unsubscribe requests and to keep
records of CASL compliance.
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Checking a box to indicate consent
Typing an email address into a field to indicate consent
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An example of toggling that
assumes consent
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One of the most important components of the CASL scheme.
Every CEM must provide a way for recipients to unsubscribe

Simple, easy & quick

Free

Means to contact the sender must be operational for at least 60 days

Cannot use a “pre-checked” box (toggle box)

An unsubscribe request must be acted on within 10 business days.
Examples ….
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Tracking should cover:
 express consents;
 implied consents;
 conversion of implied consents to express
consents; and
 implementation of unsubscribe requests
and the date it was done.
For an example of a simple spreadsheet to track CEMs, see the
Sample Tracking Spreadsheet under Tips and Tools.
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High Tech / Low Tech
 Benefits / Advantages
 Cost - variety of factors come into play
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 CRTC
 Competition Bureau
 Privacy Commission
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 Administrative Monetary Penalties ( AMPs)
 Vicarious Liability
 Private right of action – After July 1, 2017
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July 1, 2014 – CASL in effect (for the most part)
If you had an existing business relationship or
non existing non-business relationship before
CASL came into effect your organization can rely
on implied consent for the 3 year transition
period…
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Between July 1, 2014 and July 1, 2016
 If transaction, volunteering, or donation takes place this
restarts the 2 year window for implied consent
July 1, 2017
 Private rights of action
 3-year transition period for changing over - consents ends
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 CPLEA - CASL website
 Legislation
 Industry Canada
 Imagine Canada – listed under additional resources
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
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Top Ten Tips
CASL Initial Compliance Questionnaire
Registered Charity Decision Tree
Not-for-Profit Decision Tree
Sample Tracking Spreadsheet
Timelines Checklist
Information and Resources for Not-for-Profits
and Registered Charities (Booklet, PDF 30 p.)
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 Government of Canada
Updates: http://fightspam.gc.ca/eic/site/030.nsf/eng/00199.html
 Non-Profit Sector
 Law Firms
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Thank you!
For further information or training, contact us at:
[email protected]
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