The Transitional Period & Implied Consent Under CASL

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If the term “CASL compliance” is giving you a nervous twitch, you’re not alone. Many small and medium-sized businesses in Canada are scrambling to prepare for Canada’s Anti-Spam Law (CASL), whose official title says it all - especially the part about “efficiency and adaptability” (take a deep breath before you read “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“).

Two weeks from today, on July 1st, the first stage of the new law will come into force. The implied consent provisions in Section 66 create a transitional period.

For a period of three years after July 1, 2014, consent is implied for all “commercial electronic messages” (CEMs) if the sender and the recipient have a pre-existing business or non-business relationship and that relationship previously included the exchange of CEMs. Consent can be withdrawn by the recipient at any time during that three-year period. Note that “commercial electronic messages”, “existing business relationship” and “existing non-business relationship” all have special definitions in the legislation.

While this transitional period only lasts for 36 months, it allows a sender of CEMs to rely on prior relationships that reach back in time. The regular implied consent provisions only permit a sender to rely on a two-year window - in other words, implied consent depends on an existing relationship during the two-year period before the CEM is sent (or only 6-months in some cases).

In recent information sessions, the CRTC has indicated that the Section 66 transition provisions do not impose those two-year or 6-month rules: ”So what Section 66 does is during that transition period of three years, the definitions of existing business relationship and existing non-business relationship are not subject to the limitation period, which are six months and two years that would otherwise be applicable. So in theory, if you meet the definition of existing business relationship or existing non-business relationship and there’s the communication of CEMs between the individuals, you could go back 25 years in theory.” [Link to transcript.]

Don’t think the transitional period lets you off the hook. Every organization should be preparing for CASL for a July 1st start date.

 

Topics:  Canada, CASL, Commercial Electronic Messages, Implied Consent

Published In: General Business Updates, Communications & Media Updates, International Trade 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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