An American Attorney in Canada (Part 2: Anti-Spam)

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Explore:  CAN-SPAM Act Canada CASL

Canada and the USA. We enjoy the world’s longest undefended border… a border that unfortunately does not screen spam.

If you are an American attorney with US clients doing business in Canada, then you should be aware of a few things, like our lack of imaginative legislative acronyms, such as the CAN-SPAM Act (from Controlling the Assault of Non-Solicited Pornography And Marketing) (…or while we’re at, who can forget the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT-IP) Act, or the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation (E-PARASITE) Act).

Secondly, you should be aware that Canada’s incoming anti-spam law, known unimaginatively as CASL (Canada’s Anti-Spam Law) is coming into force next week, on July 1, 2014. Here are some pointers for US counsel:

  • Remember, an organization’s compliance with CAN-SPAM does not necessarily mean compliance with CASL. This is because of a number of important points of departure between the two laws. Canada’s law has been described as among the strictest internationally.
  • CASL broadly covers all “commercial electronic messages” and is not restricted to email, as is the case with CAN-SPAM. Thus, CASL is broad enough to capture text messages, social media messaging and other forms of electronic messages.
  • CAN-SPAM permits a “negative option” approach to consent, in which toggle consent boxes can be pre-clicked and the user has the ability to opt out by “un-clicking”. CASL prohibits such an approach and requires express consent with an opt-in mechanism.
  • Statutory penalties under CASL are more severe (up to $10 million for organizations, and up to $1 million for individuals), and the law also establishes a broader private right of civil action (which will come into effect in the future).
  • Lastly, CASL does provide for personal liability for directors and officers.

 

Topics:  CAN-SPAM Act, Canada, CASL

Published In: General Business Updates, Consumer Protection Updates, Privacy Updates, Science, Computers & Technology Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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