Transcript Slide 1

Presented by Bishop & McKenzie LLP
May 30, 2014
Vancouver Sun, “Anti-Spam Legislation Has Businesses
Scrambling to Comply”, May 26, 2014
Canada’s Anti-Spam
Legislation (CASL)
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Toughest anti-spam/malware legislation in
the world
Establishes rules for the sending of
commercial electronic messages (CEMs) and
the installation of computer programs (ie.
cookie tracking software, address harvesting)
Prohibits the unauthorized alteration of
transmission data
What Is It?
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Main focus of anti-spam provisions is to
prevent transmission of CEMs without
consent and without proper formalities
If you don’t have consent to send CEMs or
messages do not have required content,
risk significant liability
Staggered implementation
◦ July 1, 2014 – commercial electronic messages
◦ January, 2015 – installation of software
◦ July, 2017 – private right of action for damages
Who Does CASL
Apply To?
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Everyone – incorporated and unincorporated
businesses, not for profits, individuals,
partnerships, trade associations, etc.
The exemptions are registered charities and
political parties seeking donations
Commercial Electronic
Messages (CEMs)
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A message that encourages participation in a
commercial activity (advertising, promotions,
etc.)
o If you send a message that entices someone to buy
something or use your services – it’s a CEM
o If you send a message asking someone for permission
to send a CEM - it’s a CEM
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After July 1, 2014, need consent to send CEMs
unless the message falls under exemption
Not Just Emails
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Applies to texts, SMS messages, social
network messages
“Electronic message” is a message sent by
any means of telecommunication including
text, sound, voice or image
Excludes two-way voice communications, and
fax messages and voice recordings to a
telephone account
What Does It Mean?
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CRTC decides what is “commercial content”
on a case by case basis – no real definitions
If it is a CEM, you must have consent to send
it unless it falls under one of the exemptions
No exceptions – if it has commercial content
it is a CEM, but there are exemptions as to
when the rules apply
What Are the Exemptions?
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Even if it is a CEM, you do not need consent
to:
◦ Send a quotation upon request
◦ Complete a transaction
◦ Provide warranty, safety or recall information
• You must still include the prescribed
information and an unsubscribe mechanism
Business to Business
Exemptions
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CASL does not apply (consent will not be
required) for messages sent:
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Within an organization
Between organizations that have a relationship
To satisfy a complaint
To respond to an inquiry
To satisfy a legal obligation
• No requirement to include prescribed
information or unsubscribe mechanism in
these messages
What Is Consent?
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If it does not fall under an exemption, you
must have consent ahead of time from
anyone who receives a CEM from you
Two types of consent:
◦ Express – someone actively gives you their permission to
send a CEM
◦ Implied – reasonable to assume you have permission
based on prior relationships
• You cannot send an electronic message
after July 1st asking for this permission
Express Consent
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An active indication that someone gives you
permission to send them CEMs
Cannot be “opt-out” like US CAN-SPAM
Can be done through sign-up on website,
sign-up at point of sale, snail mail consent
form, etc.
Oral consent can be given but onus is on
sender of CEM to prove consent
Express Consent Samples
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“I agree to receive ABC Company’s newsletter
containing news, updates and promotions
regarding ABC Company’s products. You can
withdraw your consent at any time.”
“Enter your email below to receive ABC
Company’s newsletter containing news,
updates and promotions regarding ABC
Company’s products. You can withdraw your
consent at any time.”
Obtaining Express Consent
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Clearly describe the purpose for requesting
consent
Provide the name of the person seeking
consent and identify on whose behalf consent
is sought, if different
Provide contact information (physical mailing
address and either phone number or email
address) of the party seeking consent
Indicate that the recipient can unsubscribe at
any time
Separate Consents
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Cannot “bundle” consents into one for CEMs,
installation of software and altering of
transmission data.
Can be included in one form of consent
(email, consent form, etc.) but recipient has
to provide consent for each
Implied Consent
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Consent will be implied in the following
situations:
◦ Family relationships
◦ Personal relationships
◦ Business or non-business relationships (within 3 year
transition)
• Must be evidence of two-way communication
over time
Consent Wrap-Up
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Express is always best - burden of proof is on
you to show consent was obtained
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You must have a record of how consent was
acquired
◦ For express, any records (electronic database,
paper records, audio recordings) to show date, time
and permission of receiver
◦ For implied, a record of the nature of the
relationship and records of two-way
communications
Prescribed Information
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All CEMs must contain the following
information:
◦ the name of the person seeking consent and
identify on whose behalf consent is sought, if
different
◦ contact information (physical mailing address and
either phone number or email address) of the party
seeking consent
◦ a mechanism that allows the recipient to
unsubscribe easily at no cost
Penalties
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AMPs (administrative monetary penalties) are
a maximum of $1 million for individuals and
$10 million for organizations
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Directors and officers can be held personally
liable for breaches of CASL
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Companies are vicariously liable for their
employees
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Due diligence is a defence so developing and
implementing a compliance program is
essential
Enforcement
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Primarily by CRTC, but also Competition
Bureau and the Office of the Information and
Privacy Commissioner
CASL amends Competition Act to prohibit
false or misleading representations in any
part of a CEM
CASL amends PIPEDA to prohibit the use of
computer programs known as “address
harvesters”
Other Stages in CASL
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July, 2017
◦ CASL creates a private right of action that
allows a person to commence a civil action
against anyone who violates CASL
• January, 2015
 CASL prohibits the installation of computer
programs without the permission of the
computer’s user or owner
Transition Period
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3 year transition period in which some
consents remain valid (eg. express consents
that do not conform to prescribed
requirements)
Implied consent for business and personal
relationships that may not meet the criteria,
but seems likely express consent will be
required during this time.
How to Prepare
1. Review Your Processes
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Who are you sending messages to?
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What is the content of these messages?
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Do you have the proper consents?
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How are you going to prove you have consent?
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How will you handle unsubscribe requests?
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Are your staff properly trained?
How to Prepare
2. What you can do now
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Get consent for your current mailing lists
if you are not sure they’re covered
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Start keeping records of consents
(determine how records will be managed)
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Appoint a lead or team to manage
compliance and to review as needed
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Update your privacy policy (if required)
How to Prepare
3. As of July 1st
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Start including prescribed information in
your CEMs unless exemption applies
Stop sending electronic messages as first
point of contact
Stop sending CEMs without consent
Questions?
Tara L. Hamelin
Bishop & McKenzie LLP