E-Message Rules Mean Business

Conquering Canada’s Anti-Spam Legislation

“Have fun storming the castle,” said Miracle Max (played by Billy Crystal) in the classic film, The Princess Bride. Likely, Miracle Max would not be so jovial when referring to CASL—Canada’s Anti-Spam Legislation.

Indeed, CASL is a challenging and recently effective anti-spam legal regime. At its core, CASL is intended to protect Canadians from receiving, without effective consent, commercial electronic messages (CEMs) while also allowing a global marketplace perspective for commercial enterprise. Certainly, this is a delicate balance of interests.

Do you use email, SMS, social media or instant messaging to send commercial or promotional information about your organization to customers, prospects and other important audiences? Do you install software programs on people’s computers or mobile devices? Do you carry out these activities in or from Canada?

If you answered “yes” to any of these questions, CASL will likely affect you. (If you answered “I don’t know,” consider looking at your communications operations. If you answered “No” to all, well, consider this writer impressed with your ability to survive off-the-grid.)

CASL became mainly effective July 1, 2014; some portions became effective July 15, 2015. In just a little more than a year, on July 1, 2017, a private right of action will be available to address violations of CASL. CASL violators may face substantial penalties, including criminal and civil charges and personal liability. Individual representatives of an organization that commits a violation may be liable for the violation if the representative directed, authorized, assented to, acquiesced in or participated in the commission of the violation.

For these and other reasons, CASL should be taken seriously, especially by companies whose commercial footprint crosses within, from or into Canada.

To address CASL, PPAI and its Canadian affiliate, Promotional Product Professionals of Canada (PPPC) are working together to share a few best practice ideas and to address common CASL challenges that affect the promotional products marketplace and industry.

“First and foremost, it is crucial to have a comprehensive plan in place,” says PPPC Communications Coordinator Alec Raffa. “Call a meeting and sit down with key members of your staff. Evaluate your current strategy and determine where improvements are needed in relation to the new law. CASL is a complicated piece of legislation that should not be taken lightly. Sanctions for violating CASL can be crippling to your company’s bottom line. This is why it is so important to have a calculated approach from the get-go.”

Raffa adds, “From an association standpoint, we have had much success with this strategy. Many PPPC members have also adopted a similar approach. The more information you have on the subject matter, the better off you and your company will be. I invite you to check out the Canadian Government’s CASL website at www.fightspam.gc.ca for more information on how the new legislation could affect your business dealings with Canadian consumers.”

Following are a few things to consider about CASL as well as a few ways you may make a good faith effort to comply with this Canadian law:

1. CEM. For starters, it is wise to grasp the meaning of “commercial electronic message.” A CEM is an electronic message—email, text message, SMS, instant message, etc.—with content that, it is reasonable to conclude, has as one of its purposes to encourage participation in a commercial activity, including a message that offers to purchase or sell a product, good, or service, or that markets such activity.

2. Review Lists. Organizations should review all Canadian addresses used for CEM marketing and communication efforts. Consider adopting a practice where the CASL-applicable address list is updated each time a new Canadian recipient is added (or where a previous recipient opts out or unsubscribes).

3. Consent. For each Canadian address used, consider requesting express consent from the recipient—either verbally or in writing. The consent may be given electronically. Some organizations use opt-in links within a CEM, with detailed subscribe or opt-in forms to tailor the communications for which consent may or may not apply. Consent may also be implied by way of an existing business or other relationship, or if a recipient publishes or publicly discloses their electronic contact information. However, obtaining express, written consent is a safer approach. Consider using a process to maintain records of consents received (or rejected).

4. Information To Disclose. For CEMs, the CEM should identify the sender’s name and business, the name of anyone else on whose behalf the CEM is sent, any email service provider, a current mailing address, and a phone number, email address or web address. The CEM should also contain an unsubscribe or opt-out option.

5. Avoid Misleading Or False CEMs. Content and disclosures should contain accurate information about the subject matter, URLs and other information disclosed for CASL and other regulatory compliance. Avoid content or mechanisms that are confusing or misleading.

6. Tools To Assist Compliance. The government of Canada has published information and compliance considerations. Find it at this shortcut: http://bit.ly/JHUkqf. PPPC has also compiled a great deal of information regarding CASL, including informational videos, sample forms, unsubscribe options and many other tools. PPPC’s information may be found at www.promocan.com/casl.

With the ever-growing global economy, Canada’s Anti-Spam Legislation will certainly affect international commerce, and CASL may bring severe penalties to the unknowing or unwary. A focused review of CASL and your electronic communications systems is a good first step to understand how this Canadian law may or will affect the manner in which you promote your business via commercial electronic messages. A good faith (and well-documented) approach to compliance is generally a good idea with any legal regime, and CASL is no exception.

Cory Halliburton is a shareholder attorney with Weycer, Kaplan, Pulaski & Zuber, P.C., and he serves as general counsel for PPAI. This article is for general informational purposes only; it is not legal advice, and should not be relied upon as such. Each recipient is encouraged to consult independent legal counsel before making any decisions concerning the matters in this communication.

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