CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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For more information about CASL, see: CASL (Anti-spam Law), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and Contests and CASL.
For more Canadian advertising/marketing, competition, contest and CASL (anti-spam) law terms and phrases, see: Advertising Law Terms, Competition Law Terms, CASL Law Terms – A-M, Contest Law Terms – A-C, Contest Law Terms – D-H, Contest Law Terms – I-M, Contest Law Terms – N-S and Contest Law Terms – T-Z.
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The following are some key CASL (Canadian federal anti-spam legislation) related terms (N-Z):
Notice of violation (NOV).
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “[A notice of violation is] a notice served on an entity if it is believed on reasonable grounds that the entity has committed a violation. It may be accompanied by an administrative monetary penalty (additional information is available in section 22 of CASL).”
Notice to produce.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A notice served on a person requiring them to produce data, information or documents in their possession or control (additional information is available in section 17 of CASL).”
Oral consent.
In general, Canada’s federal anti-spam legislation (CASL) requires that senders of unsolicited commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies.
Express consent can be gathered from recipients under CASL either in writing or orally. Written consent may include both paper and electronic forms (examples of the latter include a box on a web page or filling out a consent form at point-of-purchase).
The CRTC’s view is that oral consent is sufficient if: (i) it can be verified by an independent third party; or (ii) where there is a complete and unedited audio recording of the consent. In either case, the onus is on the sender to prove that they had consent to send CEMs.
It is important for electronic marketers to carefully review the requirements for each type of consent (whether express or implied) or exemption under CASL, as CASL sets out very specific requirements for each.
Personal relationship.
In general, Canada’s federal anti-spam legislation (CASL) requires that senders of unsolicited commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies.
CASL contains an exception to the unsolicited CEMs section of CASL (section 6) for messages sent to a person with whom the sender has a personal relationship. “Personal relationship” is defined in the regulations under CASL in a multi-factor and case-by-case fashion, such that it is often impractical to rely on this exception for some types of promotions (e.g., “friends and family” type promotions).
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A ‘personal relationship’ requires that the real identity of the individual who alleges a personal relationship is known by the other individual involved in such a relationship (as opposed to instances where a virtual identity or an alias is used). Using social media or sharing the same network does not necessarily reveal a personal relationship between individuals. The mere use of buttons available on social media websites – such as clicking ‘like’, voting for or against a link or post, accepting someone as a ‘Friend’, or clicking ‘Follow’ – will generally be insufficient to constitute a personal relationship. Relevant factors for determining whether a personal relationship exists includes the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated or whether the parties have met in person.”
It is important for electronic marketers to carefully review the requirements for each type of implied consent and exemption under CASL.
Preservation demand.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A demand served on a telecommunications service provider requiring it to preserve transmission data in that is in or comes into its possession or control (additional information is available in section 15 of CASL).”
Search warrant.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “A judicially pre-authorized warrant that authorizes designated persons to enter a place (business or dwelling-house) to examine, copy or remove documents or things (additional information is available in section 19 of CASL).”
Sender identification information.
Under Canada’s federal anti-spam legislation, the following information must be clearly and prominently included in commercial electronic messages (CEMs) that are subject to CASL: (i) the name (or DBA name if different) of the sender; (ii) if a CEM is sent on behalf of other person (e.g., affiliate or third party), their name (or DBA name if different); (iii) if a CEM is sent on behalf of another person, state which person is sending the message and on whose behalf it is being sent; (iv) the mailing address (which must be valid for a minimum of 60 days after the CEM is sent) and at least one of the following for the sender or, if different, the person on whose behalf it is sent: phone number, e-mail address or web address (which can be provided in the CEM itself or via a web link); and (v) a conspicuously posted un-subscribe mechanism.
Similar account.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “CASL applies to CEMs sent to an electronic address. An electronic address is defined in CASL as being: a. an email account; b. an instant messaging account; c. a telephone account; or d. any similar account. Some social media accounts may constitute a ‘similar account’ under the definition of ‘electronic address.’ Therefore, whether communication using social media fits the definition of ‘electronic address’ and is captured by CASL must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. In general, CASL does not apply to the one-way general broadcast of a commercial message on social media. For example, this could include the general broadcasting of tweets on Twitter. However, messages sent directly to users through a social media closed two-way direct messaging system, would qualify as sending messages to ‘electronic addresses’ and CASL would apply.”
Undertaking.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “[An undertaking is] an agreement defining compliance obligations to be put in place following an alleged contravention of CASL, and may include a provision to pay a specified amount (additional information is available in section 21 of CASL).”
Unsubscribe mechanism.
In addition to consent and identification requirements, Canada’s federal anti-spam legislation (CASL) also requires that commercial electronic messages (CEMs) include an easy unsubscribe mechanism.
The specific requirements for a CASL-compliant unsubscribe include: (i) CEMs must include an unsubscribe mechanism; (ii) the unsubscribe mechanism must be set out clearly and prominently; (iii) the unsubscribe mechanism specifies and electronic address or web link where the unsubscribe request can be made (links must be valid for a minimum of 60 days after the message is sent); (iv) for SMS messages, users can choose between replying “STOP” or “Unsubscribe” or by clicking a link to a web page to unsubscribe from some or all messages; (v) recipients can unsubscribe by clicking a link or via a web page where they are given options for unsubscribing from some or all messages; (vi) recipients that request to be unsubscribed are unsubscribed within 10 business days; and (vii) the unsubscribe mechanism can be readily performed and is simple, quick and easy.
Warning letter.
CRTC, Frequently Asked Questions about Canada’s Anti-Spam Legislation: “[A warning letter] informs a person that Commission staff have concerns with respect to possible violations of CASL (e.g. due to complaints received), educates about CASL obligations, and encourages auto-corrective action (if warranted).”
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For more information about CASL, see: CASL (Anti-spam Law), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and Contests and CASL.
For information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.
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SERVICES AND CONTACT
We are a Toronto based Canadian competition and advertising law firm that helps clients in Toronto, across Canada and the United States practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
Our Canadian advertising/marketing law services include advice in relation to anti-spam legislation (CASL), Competition Bureau complaints, the general misleading advertising provisions of the federal Competition Act, Internet, new media and social media advertising and marketing, promotional contests (sweepstakes) and sales and promotions. We also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
For more information about our services, see: services
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
