Canada's Anti Spam Laws by Brandon Hastings

Canada’s Anti-Spam Laws:
Commercial Electronic Communications
Presented by:
Brandon Hastings BBA(Dist.), JD
Articled Student

+1 (604) 273-8481 | contact@cfmrlaw.com| www.richmondbclawyers.com

Agenda
Presentation Take-aways
About CASL
Commercial
Electronic
Messages (“CEMs”)
What is a CEM?
Which CEMs are
covered by CASL?
CEM Requirements
Content
Consent

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

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

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;
After
Intra- or Inter-organizational
communications with respect
to ongoing
relationships/projects, etc.

Presentation Takeaways
CASL is
complex
and
penalties
may be high
There is a
due
diligence
defense
The Onus is
on you to
prove
compliance
Seek
express
consent
Seek legal
advice for
creative
strategies
Keep
records

bit.ly/CFMRCRTCFAQ

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.”

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

DEVELOPING A COMPLIANCE
PROGRAM

Compliance and Enforcement Bulletin
CRTC 2014-326
Record
Keeping
Compliance
Risk
Written
Corporate
Compliance
Assessment
Senior
Management
Involvement
Policy
Training
Programs
Auditing and
Monitoring
Complaint-handling
System
Corrective
(Disciplinary)
Action

Compliance and Enforcement Bulletin
CRTC 2014-326
Due
Record
Keeping
Diligence
Defense
Risk
Written
Corporate
Compliance
Assessment
Senior
Management
Involvement
Policy
Training
Programs
Auditing and
Monitoring
Complaint-handling
System
Corrective
(Disciplinary)
Action

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)

CASL Timeline
Dec 15, 2010
-
Royal Assent
July 1, 2014
-
CASL in Effect
July 1, 2017
-
CASL Enforcement
Begins

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…”

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

CASL
Private
causes of
action
$1M fines for
individuals
Reputed as World’s Toughest
$10M fines
for
organizations

Prohibited Commercial Activities
Alteration of Transmission
Data in Electronic
Messages
Installation of Computer
Programs on other’s
Computers
Sending Messages

COMMERCIAL ELECTRONIC
MESSAGES

CEMs – Major Topics
What is a
CEM?
Which CEMs
are covered
by CASL?
Which are
exempt?
Content
Requirements
of CEMs
Identification
Requirement
Unsubscribe
Consent
Requirements
Express Implied

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”

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…

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.)

Commercial Electronic Message
Commercial Electronic Messages
Purchase
Sell
Ask for
Consent
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”

May be exempt from CASL if CEM is:
solely a request for
information regarding
commercial activity
a family or personal
message
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

Foreign States
• 116 States
• Including USA, UK, China
• Excluding Mexico
• “Reasonably believes… will be accessed”

CASL’s Many Exceptions
Read up on/seek advice
if you plan to rely on
exceptions

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

The Dark Side of Consent
“Must ensure” that
unsubscribed “without delay,” and
“no later than 10 business days after the
indication has been sent”

CASL
Exempt
Consent
Exempt
Implied
Consent
Express
Consent

Exceptions to Consent Requirements
(Content Req’s Still Apply)
referral (special rules)
reply to request for
quote
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

Express Consent
Separately Sought |Opt-in |Keep Records

Networkers and Salespeople
Rejoice!
“disclosed”
“conspicuously
published”
without
statement
prohibiting
CEMs
messages
related to
capacity in
that role

Up to 2 Years after
post-July 1, 2014
Catalyzing Event
Sender
• Political Party,
Charity
• Not-for-profit
Recipient
• Donated,
Volunteered
• End of
Membership

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)

•Gym
Originator
•Food Store
•Supplements Store
Third
Parties

The Unknown Third Party
Gym
Unsubscribe
to Gym
Food Store
Unsubscribe to all 3rd Parties

Data Collection
• Contact Info
• When / Catalyzing Event
• Type of Relationship
• Express Consent?
• Proof of Express Consent
– Audio recording
– Third-party verification
– Database + processes

Existing Business and non-Business Relationships
Personal Relationships
Cold-callers
Networkers
Customers
Explicit Consent

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

Canada's Anti Spam Laws by Brandon Hastings

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