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 outstanding uncertainties in some 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 common CASL compliance error that I see is in relation to “friends and family” type promotions. This may include, for example, a promotional contest where entrants are incentivized to share information about the contest for bonus entries or where a company’s staff is encouraged to share information about a promotion with friends and family.
Marketers should be aware, however, that while there is a CASL exception to the unsolicited CEMs section of the legislation (section 6) for messages sent to a person with whom a sender has a personal or family relationship (section 6(5)), these terms are very specifically defined under the CASL regulations.
“Family Relationship”
A “family relationship” under CASL is limited to spouses, common-law partners and parent-child relationships where they have had direct, voluntary, two-way communication.
As such, this exception does not apply to extended family members that do not fall into this definition and there is potential risk for marketers that require or assist senders to send CEMs to individuals that do not fall within the exception.
“Personal Relationship”
“Personal relationship” is defined in a multi-factor and case-by-case fashion, such that it is often impractical to rely on this exception for any broad “friends and family” type promotion.
Factors set out in the regulations for determining whether a “personal relationship” exists include the “sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of the communication, the length of time since the parties communicated or whether the parties have met in person.”
The CRTC also takes the position that it will determine whether this exception applies on a case-by-case basis and that mere social media connections may be insufficient (see, for example, the CRTC’s CASL FAQs). The CRTC’s position is also that it will strictly interpret the definition of “personal relationship” to determine whether this exception applies to “prevent potential abuse” of the exception.
In sum, agencies and marketers need to be aware that there is potential risk in running friends and family type promotions if they cannot satisfy themselves that the specific definitions of “family relationship” and/or “personal relationship” under CASL can be met.
For example, marketers could, depending on the type of promotion, essentially be assisting participants in a promotion violate CASL by encouraging electronic marketing for the promotion to third parties from whom consent has not been obtained and no exception applies.
In this regard, CASL is broad enough for liability not only for the senders of unsolicited CEMs but also those that “aid, induce, procure or cause to be procured the doing of any act” that violates section 6 of CASL (section 9 of CASL).
For more information about CASL, see: Canadian Anti-Spam Law (CASL), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and CASL FAQs.
For more information about “friends and family” promotions and CASL, see: Running a “Friends and Family” Promotion in Canada? Cruel, Cryptic CASL Strikes Again and Canadian Anti-Spam Law (CASL) Compliance Tips.
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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
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
