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 of the most common CASL compliance errors is electronic marketers relying on lists provided by third party list providers without knowing whether they are CASL compliant.
While there is nothing wrong per se with using list brokers or third-party lists, such lists, if commercial electronic messages (CEMs) are sent to Canadians, must have been compiled to comply with CASL.
In some cases, third party marketing lists are assembled by non-Canadian entities, where it is not clear whether, for example, express consent was obtained to use the e-mail addresses (or if CASL was complied with at all).
Over the past nine years, since CASL first came into force, my experience is that many U.S. clients, for example, are not aware that Canada has different anti-spam rules than in the U.S. or that Canadian law generally requires positive opt-in consent unless a category of implied consent or exception applies under CASL.
In this regard, CASL’s jurisdictional reach is broad and applies to CEMs sent from or received by a computer system located in Canada, subject to some limited exceptions. As such, U.S. marketers conducting electronic marketing to Canadians must comply with CASL.
In other cases, where e-mails are compiled by third parties from the web for B2B marketing, it is commonly not clear whether the category of implied consent for compiling such lists (the so-called “conspicuous publication” category of implied consent under CASL) has been complied with or documented.
In sum, while marketers can certainly use e-mail addresses obtained from third parties or list providers, they should satisfy themselves that the e-mail lists obtained comply with CASL’s express and implied consent requirements.
If marketers plan to use third party lists for electronic marketing to Canadians, it is also prudent to ensure that any list sharing agreement include representations that the list provider has complied with CASL and indemnification provision in favour of the marketer acquiring the list in the event the list provider has not complied with Canadian federal anti-spam law. Of course, such provisions are only as good as the ability to enforce them against a list provider.
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
