Canada’s federal anti-spam legislation (CASL) came into force in 2014. Since then, electronic marketers and their advisors have been working to comply with what remains a complex law with outstanding uncertainties in some key areas.
Having said that, many of the core requirements of CASL are not overly difficult to comply with, though continue to be misunderstood in many cases.
The following are some tips for complying with key CASL requirements.
EXPRESS CONSENT
If you cannot rely on any category of implied consent under CASL (e.g., an existing business relationship within two years of a purchase) or a CASL exemption, ensure that you have collected and documented express consent from recipients.
Express consent requests must include all of the information set out in CASL and its regulations otherwise the consent request will not be valid. In this regard, CASL and the Regulations under CASL set out specific information that must be included in express consent requests on behalf of a sender or on behalf of identified or unidentified third parties.
Failure to correctly collect express consent to send commercial electronic messages (CEMs) is the most common CASL compliance error we see and a key basis for CRTC enforcement.
For more information, see: CASL (Anti-spam Law) and CASL FAQs.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including to comply with the express consent requirements of CASL, see: CASL Compliance Checklists and Precedents.
IMPLIED CONSENT
If you are relying on one or more categories of implied consent under CASL to send CEMs) (e.g., an existing business relationship within two years of a purchase or six months of a product inquiry), ensure that all of the requirements of the particular type of implied consent are met.
Remember that there is no single blanket type of implied consent under CASL. In this regard, there are many different types of implied consent under CASL each with their own specific requirements that have to be met to rely on the type of implied consent.
Also, as with express consent, CEMs that rely on implied consent must still include the prescribed sender identification information and unsubscribe mechanism under CASL.
For more information, see: CASL (Anti-spam Law) and CASL FAQs.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including to comply with some of the key types of implied consent and exceptions under CASL, see: CASL Compliance Checklists and Precedents.
COLLECTING CONSENT FOR THIRD PARTIES TO SEND
COMMERCIAL ELECTRONIC MESSAGES
Under CASL, consent to send CEMs can be requested for a single sender themselves, identified third parties or multiple identified third parties (e.g., corporate affiliates or identified marketing partners or affiliate marketers) or unidentified third parties (i.e., entities whose identities are not yet known when express consent is requested – e.g., consents for future marketing partner relationships).
Importantly, however, each type of express consent request has specific requirements for the request and, in the case of consent requests on behalf of unidentified third parties, somewhat complex additional requirements.
The failure by electronic marketers to correctly request consent for third parties (e.g., marketing partners, affiliates, co-sponsors in promotions, etc.) is another key CASL compliance related error that we regularly see.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including to comply with express consent requests on behalf of third parties, see: CASL Compliance Checklists and Precedents.
CASL EXEMPTIONS
Similar to the different types of implied consent under CASL, there is no single blanket exemption from CASL but instead many types of exemptions.
If you are relying on a particular exemption (e.g., the “business-to-business” exemption) it is important to ensure that all the requirements of the particular exemption are met.
Importantly, there is little or no case law interpreting many CASL exemptions. This means that there may be more risk when relying on an exemption than express consent.
Express consent is the strongest type of consent under CASL, considering that it does not expire unless a recipient unsubscribes.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including to comply with some of the key types of implied consent and exceptions under CASL, see: CASL Compliance Checklists and Precedents.
PASSIVE CONSENTS
Under CASL, express consent or a category of implied consent is generally required to send CEMs unless one of the exemptions under CASL applies.
As such, passive types of consents (e.g., language in general contract terms and conditions) will likely not be CASL compliant unless a sender does not need express consent (i.e., can rely on a category of implied consent or a CASL exemption).
SHARING E-MAIL DISTRIBUTION LISTS
WITH THIRD PARTIES
There are potential CASL-related risks sharing e-mail or other electronic marketing lists with third parties.
While this is certainly possible under CASL, marketers should be aware that there are specific requirements that must be met depending on who a list will be shared with (e.g., to expressly identify third parties with whom consent is being gathered on behalf of at the time consent is requested, including their contact information and other somewhat complex requirements when a consent request is made on behalf of third parties not yet known when consent is requested).
Marketers should also be aware that there is also potentially not only risk if they themselves violate CASL (e.g., send CEMs without consent), but also if they assist third parties that violate CASL.
As such, it is often prudent for marketers that want to share electronic marketing lists with third parties to ensure that they have list sharing agreements in place with the third parties with whom they share e-mails.
For more information, see: CASL (Anti-spam Law), CASL Compliance Errors and Influencer, Co-Sponsor and List Sharing Agreements.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including to comply with express consent requests on behalf of third parties, see: CASL Compliance Checklists and Precedents.
SENDER IDENTIFICATION INFORMATION
Electronic marketers should ensure that all CEMs include the prescribed sender identification information required by CASL unless an exemption applies.
For more information, see: CASL (Anti-spam Law) and CASL FAQs.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including to comply with the sender identification information required for express consent requests and to be included in CEMs, see: CASL Compliance Checklists and Precedents.
UNSUBSCRIBE MECHANISM
Electronic marketers should ensure that all CEMs include a CASL-compliant unsubscribe mechanism.
For more information, see: CASL (Anti-spam Law) and CASL FAQs.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including to comply with the unsubscribe mechanism requirement under CASL, see: CASL Compliance Checklists and Precedents.
DOCUMENTING CONSENT
Under CASL, the onus is on senders of CEMs to document consent.
As such, it is important to document the type of consent (whether express or implied) or exemption being relied upon to send CEMs, evidence of consent (e.g., subscription logs, forms, dates and names/e-mail addresses), divide distribution lists according to the type of consent or exemption being relied upon and to scrub lists after recipients have unsubscribed or the relevant time period for a category of implied consent has expired (e.g., two years after a purchase).
Failure to adequately document consent is another CASL-related compliance error that we regularly see, including not documenting consent at all and failing to divide distribution lists into the type(s) of consent or exemption being relied upon to send CEMs.
For more information, see: CASL (Anti-spam Law) and CASL Compliance.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including our template CASL Corporate Compliance Program, see: CASL Compliance Checklists and Precedents.
CASL CORPORATE COMPLIANCE PROGRAMS
Electronic marketers should strongly consider adopting a CASL corporate compliance program, particularly if electronic marketing is a core aspect of marketing strategy. The CRTC has issued guidance on CASL corporate compliance programs including key recommended elements.
For more information, see: CASL Compliance.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, including our template CASL Corporate Compliance Program, see: CASL Compliance Checklists and Precedents.
CASL AND CONTESTS/PROMOTIONS
CASL is often relevant when running contests or other types of promotions in Canada.
This includes if electronic distribution lists will be used to market the contest/promotion, the contest/promotion will include the collection of e-mails for marketing unrelated to administration of the promotion, if participants’ e-mail addresses will be shared with third parties (e.g., related entities or affiliate marketers) or participants are encouraged or required to “share” information about the contest/promotion with friends or family.
Given the potentially severe penalties for violating CASL, which include administrative penalties of up to $10 million, it is important for those running promotions in Canada to ensure that they comply with CASL.
For more information about contests and CASL, see: Contests and CASL and CASL Compliance Errors.
CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, see: CASL Compliance Checklists and Precedents.
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