Canada’s Anti-Spam Legislation: Are You Ready?

On July 1, 2014, the first phase of Canada’s Anti-Spam Legislation (CASL) comes into effect. What can brokers do to ensure that their emails, social media posts and instant messages comply with the new rules?

CASL is concerned in part with commercial electronic messages (CEMs) – sound, text and images sent electronically to promote involvement in a commercial activity, even if the sender will not profit from it.

Below are four key areas that brokers need to consider when developing a compliant communications policy:

Express Consent

Brokers sending CEMs must obtain express consent from recipients to receive them. More importantly, recipients must take action to provide consent – neglecting to withdraw it is insufficient. Consent is manual. Recipient must take action to provide consent. Consent is pre-selected. Recipient must take action to withdraw consent.

Request for Consent Samples Legal: Manual Opt-in

Legal - manual opt-in

Illegal:Automatic Opt-in

Illegal - opt-out

Required Elements

A CEM must contain:

  • Identity of the sender and, if different, the identity of the person on whose behalf it is sent
  • Information enabling recipients to readily contact the sender or the person on whose behalf it is sent
  • An unsubscribe mechanism that operates at no cost to recipients and functions for at least 60 days after sending; unsubscribe requests must be fulfilled within 10 days

Exceptions

While CEMs must always contain the required elements, brokers may send them without consent under certain circumstances. These include:

  • CEMs sent to new recipients on a referral basis, subject to conditions
  • Factual notifications about a product, good or service the recipient uses or purchases on an ongoing basis
  • CEMs delivering a product, good or service, including updates or upgrades, to recipients who are entitled to receive it under the terms of a transaction they entered

Certain electronic communications are entirely exempt from CASL, such as two-way voice communication, faxes and voice recordings.

Transition Period

Acknowledging the difficulty in building and adopting a compliant communications model, CASL allows businesses to continue sending CEMs with implied, rather than express, consent – until July 1, 2017. By then, businesses will be expected to have collected express consent from all recipients of their CEMs. Breaches of CASL may cost up to $10 million.

The full text of the Act and Regulations contains more detail on the requirements, exceptions and exemptions. Brokers are encouraged to review their communications practices, consult their provincial association, visit the official Government of Canada CASL website and seek counsel from a privacy lawyer to aid in developing a compliant communications plan.

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