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.
In this regard, one of the most common CASL compliance errors I see is in relation to express consent requests, both for senders themselves and when express consent is being requested on behalf of third parties (either identified or unidentified third parties).
Incomplete Express Consent Requests
CASL is highly prescriptive legislation and sets out specific identification and other information that must be included in both express consent requests and in CEMs themselves.
In this regard, I commonly see initial drafts of express consent requests prepared by clients that include some, but often not all of, the information required by CASL to be included in express consent requests.
Express consent is the strongest form of consent, in that it is not time limited and does not expire unless a recipient unsubscribes. As such, it is very important that all initial express consent requests are CASL compliant.
In addition, the information that must be included in an express consent request under CASL can vary, according to, among other things, if consent is being requested on behalf of a single or multiple persons, on behalf of an identified third party or on behalf of an unidentified third party.
Other nuances for express consent requests include the requirement to include the names of all persons on whose behalf consent is sought and the type of name of the person requesting consent, depending on which name they do business as (i.e., corporate name or doing-business-as or “DBA” name).
Marketers that commonly use express consent requests to build their marketing lists, including in relation to point-of-purchase sales, online e-commerce sites and other marketing (e.g., in connection with promotional contests or other types of promotions) are well advised to use compliance checklists to ensure that their express consent requests for electronic marketing are compliant.
Incomplete Express Consent Requests
for Third Parties
Under CASL, it is possible to request consent to send CEMs for three categories of persons: (i) a sender themselves on their own behalf; (ii) an identified third party (or multiple identified third parties); or (iii) an unidentified third party (or multiple unidentified third parties) who are as yet unknown when the express consent request is made.
However, I commonly see requests to gather consents for a broad range of persons without complying with CASL’s specific requirements for requesting consent on behalf of third parties, such as identifying third parties where their identities are known or including the required contact information depending on who consent is being requested for (i.e., a mailing address and at least one of the following for each entity on whose behalf consent is being requested: a phone number, e-mail address or web address).
In addition, there are very specific and complex rules under CASL where consent is being requested for third parties that are not yet known when consent is being requested, which should be reviewed very carefully by marketers.
Based on the above, the majority of draft express consent requests I have seen prepared by clients have not been CASL compliant, including where express consent is being requested only for a single sender and where express consent is being requested for multiple entities (e.g., blanket express consent requests that do not comply with the specific CASL rules for identified and unidentified third-party senders).
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 template 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
We are a Toronto based Canadian competition law and advertising law firm who helps clients in Toronto, 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
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For more information about our firm, visit our website: Competitionlawyer.ca
