Canada’s federal anti-spam legislation (CASL) came into force in 2014. Since then, electronic marketers and their advisors have been working to comply with what is still a complex law with some outstanding uncertainties in key areas.
In providing CASL related legal advice to clients since CASL came into force in 2014, and over the past several years, I regularly see some of the same compliance errors being made, including by otherwise sophisticated marketers.
It is also relatively uncommon for me to see companies have a CASL compliance program in place or established processes to comply with CASL’s consent, sender identification, unsubscribe and documenting consent requirements.
One common CASL compliance error that I see is combining electronic marketing with a promotional contest or other type of promotion without consent for the additional marketing.
In general, CASL requires that marketers have consent (whether express or implied) to send commercial electronic messages (CEMs) to Canadians, unless they can rely on an applicable CASL exception.
In this regard, organizers of promotions (e.g., contests) commonly want to build electronic distribution lists in conjunction with a promotion.
The potential CASL issue, however, is that while consumers may have agreed to participate in a contest or other type of promotion, they may not have agreed to receive other types of CEMs.
Helpfully, there is an exception under the CASL regulations from the unsolicited CEMs section of CASL (section 6) for replying to requests or inquiries. This exception can be very helpful to, for example, send CEMs in relation to a contest or other promotion, where participants have entered the contest/promotion or otherwise inquired about a promotion (i.e., for marketers to respond to inbound inquiries that do not involve unsolicited CEMs).
This exception, however, is narrow and does not contemplate sending CEMs that are unrelated to the initial inbound inquiry.
As such, if marketers want to build distribution lists in conjunction with a promotional contest or other promotion, it is generally prudent to request and obtain express consents for CEMs that are unrelated to the primary promotion.
This can usually be easily done with a CASL-compliant express consent request included on contest landing pages or where consumers agree to participate in a promotion.
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 CASL and contests, see: Contests & CASL.
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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
