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CASL – Commercial Anti-Spam Legislation

CASL focuses on “commercial electronic messages” (CEMs).  These include emails, texts, robo-calls, posts to a client’s website, etc. – anything sent electronically.  They must be commercial, meaning offers to sell goods or services or provide business or investment opportunities, or messages that promote such offers.  A renewal reminder?  A firm newsletter?  An invitation to a golf tournament you’ve sponsored?  An electronic business card?  All are likely CEMs, subject to the new law.( http://www.crtc.gc.ca/eng/archive/2012/2012-548.htm )

Also see: http://www.chamber.ca/resources/casl/  which is the Canadian Chamber of Commerce site.

Proof of consent – either express or implied

– verbal ?   - written?   - business cards ?  contact on business website ?

 

 

There are three general requirements for sending a commercial electronic message (CEM) to an electronic address. You need 1) consent, 2) identification information and 3) an unsubscribe mechanism.

 

Consent

·        Seek your clients’ express consent before July 1, 2014, to receive CEMs after that date.  You must invite people to affirmatively opt in; consent can’t be implied from a non-response.

-Addition to membership application to have permission to use email address to communicate with them- separated “opt in” permission ?

                                                                                    

·        Keep track of the consents you obtain, and the basis for each-the onus is on the sender to record and prove consent.  Implied consents expire two years after you last did business together, so try to get express consents whenever you can.  Don’t use emails gathered without consent, e.g., through data harvesting, hacking, in breach of privacy, etc.

 

    a)    Consent obtained orally

23. The Commission considers the following forms as sufficient to discharge the onus of demonstrating oral consent:

  • where oral consent can be verified by an independent third party; or
  • where a complete and unedited audio recording of the consent is retained by the person seeking consent or a client of the person seeking consent.

For example, a person may request and obtain oral consent in situations where information is collected over the phone (e.g. call centres) or consent may be given at the time that individuals use a product or service 

        

         b)    Consent obtained “in writing

24. The Commission notes that for the purposes of section 4 of the Regulations, the term “in writing” includes both paper and electronic forms of writing.

25. The Commission considers that the requirement for consent in writing is satisfied by information in electronic form if the information can subsequently be verified.

26. Examples of acceptable means of obtaining consent in writing include checking a box on a web page to indicate consent where a record of the date, time, purpose, and manner of that consent is stored in a database; and filling out a consent form at a point of purchase.   

Identification

You must identify yourself and the persons on whose behalf a commercial electronic message (CEM) is sent. When a CEM is sent on behalf of multiple persons, then all of these persons must be identified in the CEM.

 

Unsubscribe

You must include an unsubscribe mechanism in the commercial electronic messages (CEMs) that you send. For example, a CEM sent via SMS may state that an end-user can unsubscribe by texting the word "STOP." Another possibility is a hyperlink that is included clearly and prominently in an email that allows the end-user to unsubscribe by simply clicking it. The hyperlink may also be to a webpage that is readily accessible without delay and is at no cost to the recipient.

 

Example for emails: has “who and where” identification and an unsubscribe mechanism

 

Reith & Associates|462 Talbot Street |St.Thomas, ON   N5P1B9 | 519-631-3862 www.ReithAndAssociates.com

If you no longer wish to receive these emails, please reply to this message with “Unsubscribe” in the subject line or simply click unsubscribe.”(–this is hyperlinked to your individual email.)


 

Examples for text messaging:         An unsubscribe mechanism must be readily performed pursuant to s. 3(2) of the CRTC Regulations. This image shows an unsubscribe mechanism that can be readily performed on Company Inc.’s web site. The user has a choice to either check a tick box to unsubscribe from all messages from Company Inc. or to only unsubscribe from receiving promotional messages. The user can then click on “Submit,” once he or she has made a choice.

 

Prospects or new opportunities:

Someone gives me a business card: Is that clear consent to add them to my distribution list?

 You may have their implied consent to send them CEMs, as long as:

·        the message relates to the recipient's role, functions or duties in an official or business capacity

·        the recipient has not made a statement when handing you the business card that they do not wish to receive promotional or marketing messages (CEMs) at that address.

 

Does section 6 of CASL apply to messages sent to my membership?

Yes, section 6 of CASL applies, but consent may be implied where CEMs are sent to members of an association, club or voluntary organization. When sending CEMs to your membership based on implied consent, you should ensure that you are only sending to members. "Membership" means the status of having been accepted as a member of a club, association or voluntary organization in accordance with its membership requirements. You should also ensure that your organization is a club, association, or voluntary organization that is:

·        a non-profit organization, organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit, and

·        no part of its income is payable for the personal benefit of any member, proprietor or shareholder unless that entity is an organization whose primary purpose is the promotion of amateur athletics in Canada.

·        EBWN is a non-profit organization but helps to promote “for profit” as well as other goods and services for their members. The CEM’s to fellow members are implied permission.

The CEM must still respect the other two requirements - it must contain the identification information and unsubscribe mechanism


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