Preparing for the Expiry of CASL’s Transitional Provision

tbk Creative has published a very good and thorough post of the upcoming expiry of CASL’s (Canada’s anti-spam law) transitional provision on July 1, 2017. While a significant amount has recently been written on the upcoming private rights of action for CASL (i.e., civil and class action rights that will also come into effect on July 1st), there has been less coverage of the practical challenges companies and brands face in refreshing consents before July 1st. Among other things, tbk’s post discusses the key implications of the expiry of the 3-year transitional period for existing business relationship consent on July 1st, the fact that requesting new consents before the deadline needs to be tailored to a company/brand’s marketing list and some of the practical factors to evaluate what must be done and potential risks.

Below is an excerpt with a link to the full post.

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A short while ago, tbk Creative received an inquiry that looked something like this: “With Canada’s Anti-Spam Legislation (CASL)’s July 1, 2017, date fast approaching, which will end the transitional provision (s. 66 of the Act), should we be sending out an email blast to our current list of subscribers and requesting they provide express consent?”

This is a good question to ask at this juncture, but the answer isn’t as simple as a yes or a no. In this article, I’ll flush out what this whole three-year transitional provision cessation date is all about, if you should be taking any action to anticipate for it, and recommendations to our federal government to put an end to these unnecessarily complex situation for our Canadian businesses.

What the Transitional Provision Is

The transitional provision is based on section 66 of CASL, which reads:

“66. A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force,

(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(10) or (13), respectively, without regard to the period mentioned in that subsection; and

(b) the relationship includes the communication between them of commercial electronic messages.”

To translate this provision for businesses, it’s basically saying if you had an existing business relationship with someone prior to July 1, 2014, and that relationship consists of a commercial electronic message (CEM) between you and them, you have three years from July 1, 2014, to continue to send them CEMs (unless they provide express consent, unsubscribe, a different exception as per the regulations is formed between you and them, etc.).

Extending the Olive Branch

In a legislation that is anti-competitive to our Canadian businesses, the transitional provision was a bit of an olive branch in that CASL’s 2-year and 6-month existing business relationship purging rules were delayed from coming into force. According to sections 10.10.a and 10.10.e, after someone buys a product or service, or someone inquires about a product or service you sell, an existing business relationship is formed and you have implied consent to send them CEMs for up to 2 years or 6 months, respectively. If they don’t buy a product in that period, provide express consent, or a different exception isn’t formed as per the regulations, you are prohibited from sending them any further CEMs.

How this ties into the transitional provision is that without this provision, you would have to remove everyone you had an existing business relationship with prior to July 1, 2014, as per their individual, appropriate 2-year or 6-month dates (the actual date would be unique to every contact); however, because of the transitional provision, you’re given three years, and those three years terminate on July 1, 2017.

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For the full post see: Hopelessly Preparing for the Cessation of CASL’s Transitional Provision.

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