CASL: 3 Next Steps in 2012

by Dentons
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As many of us now know, Canada’s Anti-Spam Law is now expected to enter into force in 2013. Don’t expect things to sit idle until then, however.

3 Next Steps for CASL in 2012

Following are three next steps for 2012, ranked in order of importance to industry stakeholders:

1. Industry Canada to issue new set of regulations for comment

As we noted in previous posts here and here, while businesses had hoped that regulations would clarify key terms and obligations under the Act, and lessen the Act’s impact on certain types of communications, many stakeholders were disappointed. Many businesses considered that neither the Industry Canada regulations as originally published for comment, nor the CRTC regulations as finalized, went far enough to clarify obligations. Moreover, neither set of regulations provided the exemptions many businesses have called for, to exclude certain categories or types of messages from the application of CASL consent requirements.

A glimmer of hope is in sight: Industry Canada is expected to publish a new set of regulations for comment in the coming weeks. These regulations are expected to contain exemptions from the application of CASL requirements. In the comment period, businesses will have the opportunity to comment on the regulations, and seek whatever further changes are required to make CASL workable.

2. CRTC to issue a series of information bulletins for industry

Anyone who has tried to read through CASL’s provisions and the accompanying CRTC regulations knows that they tend to raise at least as many questions as they answer. The CRTC is expected to issue information bulletins in the coming weeks to help clarify what is meant, and required, by some key elements of the regulations. These bulletins may include matters relating to what it means to get consent “in writing” online, and how far businesses must go to make information accessible in “commercial electronic messages”.

3. Spam Reporting Centre

The government is currently reviewing bids by third-party service providers to operate the The Spam Reporting Centre. The Centre will act as a liaison between the public and the government agencies (CRTC, Office of the Privacy Commissioner, Competition Bureau) on spam complaints and monitoring. The government states that:

When operational, the Spam Reporting Centre will accept various types of electronic messages from individuals and organizations in Canada. Reporting spam and related electronic threats will not stop such threats completely; however, the data sent to the Spam Reporting Centre will help it identify trends, and try to find out who is sending the spam and other threats and from where. This will aid in the future prosecution and civil proceedings against those responsible for electronic threats in Canada and internationally.

The final line of the above quote – “future prosecution and civil proceedings”, and “threats in Canada and internationally” – is a stark reminder of two important points.

First, the government means business. Its objective is to “drive spammers out of Canada” (then Minister of Industry Tony Clement, 2010). Second, CASL is designed to reach beyond Canada. It is designed to capture commercial electronic messages that may be sent from other countries, and also to provide the framework for international monitoring and enforcement.

3 Things to do while you “wait” for CASL in 2013:

  1. Participate in the comment process on the coming draft Industry Canada regulations
  2. Remind yourself of the differences between the U.S. CAN-SPAM requirements, and CASL
  3. It’s strongly recommended that businesses use the lead time before CASL’s entry into force to get their operations in order. Prepare your organization’s CASL audit, checklist, and Compliance Policy. The CAN-SPAM vs. CASL presentation and an earlier article of ours can help explain the basics.

 

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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