Canada’s federal anti-spam legislation (CASL) came into force in 2014. Since then, marketers and their advisors have been working to comply with what remains a complex law with some outstanding uncertainties in key areas.
In providing CASL advice to clients since CASL came into force, and even over the past several years, I regularly see some of the same compliance errors being made, even by otherwise sophisticated marketers.
In this regard, one common CASL compliance error that I see is the failure to update and scrub electronic distribution lists.
While much of the compliance discussion for CASL tends to relate to its three core requirements for sending commercial electronic messages (CEMs) – i.e., consent, sender identification a CASL-compliant un-subscribe mechanism – back-end compliance is also essential for CASL compliance.
In this regard, in general, the onus is on senders to document consent for sending CEMs (whether express or implied consent). Unfortunately, however, in many cases marketers do not have sufficient systems in place to update and scrub their electronic marketing lists to remove recipients when there is no longer consent or an applicable exception.
CASL requires, among other things, that: (i) recipients that request to be unsubscribed be removed from marketing lists within 10 days; (ii) existing customers be removed after two years from the most recent purchase (unless they have provided express consent to receive CEMs during that time); (iii) people that have inquired about a product be removed after six months after the inquiry (unless they have provided express consent during that time); and (iv) for some of the exceptions under CASL, such as the so-called “B2B exception”, that recipients be removed when the applicable exception no longer applies (e.g., for the B2B exception, when the relevant business relationship no longer exists).
Based on the fact that express consent and the various types of implied consent and exceptions under CASL each have different requirements, electronic distribution lists should be organized (i.e., divided) according to the type of consent (whether express or implied) or exception being relied upon for each recipient.
Distribution lists should also be regularly reviewed and “scrubbed” to remove recipients where neither consent (whether express or implied) nor a relevant exception still applies.
For CASL precedents for documenting consent, see: Canadian Anti-spam Law (CASL) Precedents/Forms.
For more information about CASL, see: Canadian Anti-Spam Law (CASL), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and CASL FAQs.
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CASL PRECEDENTS/FORMS
In addition to our legal services, we also offer lawyer prepared CASL precedents and checklists that identify key consent, disclosure and other requirements for electronic marketing to Canadians with checklists and precedents to comply with CASL.
Our precedents and checklists are an excellent starting point to mitigate risk and avoid common CASL-related issues, including relating to express consent requests (including on behalf of third parties), sender identification information for CEMs, compliant 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 and to order see: Canadian Anti-spam Law (CASL) Precedents/Forms.
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SERVICES AND CONTACT
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