New Canadian Anti-Spam Legislation (CASL) Rules in Effect as of July 1, 2017

If you work in electronic marketing in Canada, you are probably aware of and abide by Canadian Anti-Spam Legislation (CASL).  If CASL has been relevant to how you carry on business, be advised that July 1, 2017 marks the end of a transition period by which you may have to make some changes to your electronic marketing operations.

When CASL was first implemented, the legislation provided a transition period from July 1, 2014 – July 1, 2017. During the transition period, marketing and communications organizations were permitted to send “commercial electronic messages” (CEMs) to recipients from whom they had obtained “implied consent” to receive them.  This implied consent to receive was assumed, unless the recipients unsubscribed/opted-out of them (i.e. clicked unsubscribe in an email). After July 1, 2017, CEMs can only be sent to recipients that have expressly consented/opted-in to receiving them, OR whose “implied consent” is now valid as per the new meaning of implied consent under CASL.

To obtain express consent to send CEMs, you must set out clearly the following:

  1. The purpose or purposes for which the consent is being sought;
  2. Information that identifies the person seeking consent, and if the person is seeking consent on behalf of another person, prescribed information that identifies that other person; and
  3. Any other prescribed information set out in the regulations of the legislation.

For implied consent to now be valid under CASL, you generally have to send your CEMs to customers within either of:

  • 24 months of a purchase from the your organization; or
  • 6 months of the last inquiry made by a customer to your organization.

Please note that failure to comply with the new consent requirements after July 1, 2017 may expose you to a new private right of action.  Should a Court determine that a violation has occurred, you could be liable for damages ranging anywhere from $200 to $1,000,000 for each day on which a contravention occurred.  With the potential for such a serious penalty, it is advisable that you take the following steps:

  • Send an express consent communication to all customers (likely by e-mail) on your customer lists asking them to confirm that they opt-in to receive your CEMs.
  • Stop sending CEMs to any customers who have not responded to these emails with express consent. Relying on implied consent at this point could be risky.  Since the rules are new, their meaning has not yet been interpreted (it would be unclear for example what kind of inquiry is sufficient).  As such, acquiring express consent from your customers is your safest approach.
  • Keep good records of all express consent customers.
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