Bringing CASL into Focus - Recent Efforts to Clarify Canada’s Anti-Spam Legislation

by Bennett Jones LLP
Contact

Industry Canada and the Canadian Radio-television and Telecommunications Commission (CRTC) have received numerous stakeholder submissions and inquiries in relation to Canada’s Anti-Spam Legislation (CASL) and its two subordinate regulations, known as the Electronic Commerce Protection Regulations (ECPR). While the CRTC’s ECPR have been in final form since March 28, 2012, Industry Canada has been receiving feedback through public comment and bilateral and multilateral stakeholder meetings since its original draft ECPR were published on July 9, 2011. Both Industry Canada and the CRTC have recently attempted to improve understanding of the new legislation: Industry Canada has incorporated stakeholder feedback into a new draft ECPR while the CRTC has released further information on the new legislation.

Updated Regulations

On January 5, 2013, Industry Canada published its revised draft ECPR under CASL. These regulations have been amended, in part, to address concerns raised by the numerous submissions Industry Canada received with respect to the initial draft regulations.

Of note, the current draft of the ECPR:

  • adopts a broader, more principled approach with respect to the definition of “personal relationship” by replacing the previous requirements—to have had an in-person meeting at some point in time and engaged in two-way communication within the previous two years—with an objective test to determine if a given relationship is personal;
  • introduces additional exemptions with respect to the consent, content and form requirements currently prescribed by CASL—in particular, the aforementioned requirements will not apply with respect to commercial electronic messages (CEMs) sent, for example: (i) internally within an organization that concerns the affairs of the organization; (ii) in response to a request, inquiry, complaint; or (iii) to satisfy a legal or juridical obligation); and
  • exempts from the installation consent requirements two classes of computer programs installed by or on behalf of a telecommunications service provider—those for the purpose of updating or upgrading the provider’s network and those preventing illegal activities posing an imminent risk to the security of the network.

Ending on February 4, 2013, the ECPR are currently subject to a 30-day consultation period during which stakeholders are invited to submit to Industry Canada comments regarding these proposed regulations. We expect that the regulations, subject to any revisions which may arise from the consultation process, will be finalized thereafter.

Stakeholder Outreach

The Canadian IT Law Association (IT.Can) hosted an informative outreach meeting early this year where representatives from the CRTC spoke about their views on the future enforcement of CASL. The focus of the meeting was to provide commentary on the two Compliance and Enforcement Information Bulletins issued by the CRTC on October 10, 2012, as well as to explore some of the hypothetical scenarios that have been raised by industry and the legal community.

The following insights were gleaned from the discussion with CRTC:

  • The aforementioned bulletins are intended to be treated as guidance and are not meant to be prescriptive. Thus, the examples provided in these bulletins are not necessarily the only ways to ensure compliance with CASL;
  • CEMs must identify the sender, along with the information necessary to readily contact the sender. If sent on behalf of, or in coordination with, an affiliated entity, the sender must also include the affiliate’s identifying information;
  • In considering what will constitute a CEM, the message need not necessarily be promotional in nature. Those sending electronic messages should pay close attention to the definition in the Act. A link to a website alone may constitute a CEM even if it links to a general homepage;
  • Express consent to receive CEMs requires a positive action by the user to give the informed consent necessary. It will not be sufficient for a check-box, for example, through which consent is sought to be preselected/pre-checked;
  • The CRTC is of the view that any express consent obtained prior to CASL coming into force will be sufficient to rely upon once CASL is in force (even if the initial consent did not meet all the requirements for compliance under CASL);
  • With respect to certain social media sites that allows messages to be posted to “walls” (e.g., Twitter), consent to receive any messages that are posted on a “wall”, sent via a feed, or otherwise not targeted to any specific individual is obtained when a user agrees to follow or otherwise subscribe to receive such messages. Direct messages to any given user’s electronic address, however, are different in nature, and will require CASL-complying consent; and
  • Enforcement of the new legislation will be supported by the CRTC’s Spam Reporting Centre. This is anticipated to be fully operational by March 2013, but will only start processing complaints when CASL comes into force.

Given that CASL is not expected to be in force until late 2013 or early 2014, the full impact of this legislation and its corresponding regulations continues to remain uncertain. While the CRTC and Industry Canada have made efforts at clarifying the requirements under CASL, the multitude of variations on digital communications have made it difficult to anticipate precisely how CASL will apply in all possible emerging scenarios.

Nevertheless, we expect this law will invariably apply broadly and, despite the increased flexibility contained in the ECPR, impose relatively onerous requirements on businesses that rely on CEMs.

In anticipation of this new law, such businesses should be aware of the foregoing requirements, and should begin the process of ensuring that internal policies, practices and procedures comply with same.

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.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.