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 repeated.
In this regard, one of the most common CASL compliance errors I see is in relation to attempts to gather consent to send commercial electronic messages (CEMs) through different types of passive consent (i.e., non-express consent or implied consent that does not comply with CASL).
While CASL does allow marketers to rely on a range of different types of implied consents, in addition to express consent and exemptions from the requirements of section 6 altogether (the consent, sender identification and unsubscribe provision of CASL), each type of implied consent set out under CASL has different specific requirements.
As such, it is not sufficient, for example, to merely include a statement in online terms of use, contest rules or other types of terms governing marketing to Canadians that they agree to receive unsolicited CEMs.
If a sender does not have express consent, as set out under CASL, or cannot rely on a CASL exemption, then they must be able to meet the specific test for the type of implied consent(s) they are relying on as set out under CASL or its regulations. In this regard, each type of implied consent under CASL has a different test (and compliance checklists can be very helpful in complying with them).
To put it another way, merely including some passive language in online terms of use, contest rules or other terms with Canadians purporting to gather consent for consumers to agree to receive CEMs is insufficient to meet the implied consent requirements of CASL unless a specific category of implied consent (or multiple types) is met under the legislation.
Given the potentially severe penalties for violating CASL, which includes administrative monetary penalties of up to CDN $10 million, it is important for marketers to ensure that they have either express or implied consent as set out under CASL or can rely on one of CASL’s exemptions before sending CEMs to Canadians.
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
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
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
