PPB June 2017

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business-to-consumer electronic
communications in this industry,
the sender includes (or would
certainly like to include) some
form of promotional material
or information such as dates
for an upcoming event, a link
to a product, good or service,
or an advertisement to push a
new product or service, even if
unrelated to the core purpose
for the communication. Under
CASL, if the communication
has as a purpose, to encourage
participation in some commercial
activity, the communication is
likely a CEM under CASL. If the
recipient is in Canada (or has a
Canadian web address) and has
not consented to the receipt of
such a CEM, the CEMmay be in
violation of CASL.
Because of the sweeping
nature of CASL, it’s wise to adopt
a comprehensive plan to evaluate
commercial communications
strategies and processes aimed
at CASL compliance. Following
are five areas in making a good
faith effort to comply with this
Canadian law:
1 Review Lists. Organizations
should review all Canadian
addresses used for CEMmarketing
and communication efforts.
Consider adopting a practice
where the CASL-applicable
address list is updated each time a
newCanadian recipient is added
(or where a previous recipient opts
out or unsubscribes).
2 Consent. For each Canadian
address used, consider
requesting express consent from
the recipient—either verbally
or in writing. The consent may
be given electronically. Some
organizations use opt-in links
within a CEM, with detailed
subscribe or opt-in forms to tailor
the communications for which
consent may or may not apply.
Consent may also be implied
by way of an existing business
or other relationship, or if a
recipient publishes or publicly
discloses their electronic contact
information. However, obtaining
express, written consent is a
safer approach. Consider using
a process to maintain records of
consents received (or rejected).
3 Information To Disclose.
For CEMs, the CEM should
identify the sender’s name and
business, the name of anyone
else on whose behalf the CEM is
sent, any email service provider,
a current mailing address, and a
phone number, email address or
web address. The CEM should
also contain an unsubscribe or
opt-out option.
4 Avoid Misleading Or
False CEMs. Content and
disclosures should contain
accurate information about the
subject matter, URLs and other
information disclosed for CASL
and other regulatory compliance.
Avoid content or mechanisms
that are confusing or misleading.
5 Tools To Assist Compliance.
The Government of Canada
has issued helpful advisories to
assist businesses and individuals
in their compliance efforts. Find
the main page at this shortcut:
• Government of Canada
advisory entitled ‘Enforcement
Advisory – Notice for
businesses and individuals on
how to keep records of consent’
provides information on what
the government believes is
good record-keeping practices
for the consent required by
CASL. The advisory, issued on
July 27, 2016, may be viewed at:
• Government of Canada
guidance on implied consent
versus express consent, as well
as additional record-keeping
concepts may be viewed at
com500/guide.htm.
• Compliance and Enforcement
Information Bulletin
CRTC 2014-326, which
provides guidelines to help
businesses develop corporate
compliance programs.
See
archive/2014/2014-326.htm.
Until CASL is better developed,
businesses should consider
removing advertising graphics
and hyperlinks when sending
unsolicited communications to
recipients in Canada who have not
consented to the receipt of a CEM
from the sender. If the recipient
consents (expressly or impliedly
as allowed by CASL) to the
receipt of CEMs, and if the sender
information and unsubscribe
process are included as required,
then the sender is in a far better
position to honor Canada’s effort
to ‘change Canada’s reputation
as spamhaven,’ being one of
three outcomes that, according
to the Canadian government,
define direct success for the
CASL legislation.
Cory Halliburton is a shareholder attorney with Weycer, Kaplan, Pulaski & Zuber, P.C., and he serves as
general counsel for PPAI. This article is for general informational purposes only; it is not legal advice, and
should not be relied upon as such. Each recipient is encouraged to consult independent legal counsel before
making any decisions concerning the matters in this communication.
Until CASL is
better developed,
businesses should
consider removing
advertising
graphics and
hyperlinkswhen
sending unsolicited
communications
to recipients in
Canadawhohave
not consented to
the receipt of aCEM
fromthe sender.
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