Changes in Canada anti-spam legislation coming July 1, 2017 – What to do about it

On July 1, 2017, changes to Canada’s Anti-Spam Legislation (CASL) are coming into effect. If yours is a Canadian business, and you regularly communicate electronically with your clients, and have done so for longer than the past two years, then this affects you. Electronic communication means a “Commercial Electronic Message” (CEM). If you are communicating with your clients electronically about business matters, with emails, texts or instant messaging, then your communications are by definition “commercial”. The basis of CASL is that you cannot send anyone CEMs without some form of consent – express or implied. Otherwise you are spamming people. The period of allowing companies time to sort out their clients’ consent (three years since CASL was enacted on July 1, 2014) is over by July 1, 2017. If you haven’t already attended to this matter, it’s a bit late – but what happens now?

“If you commit a violation under any of sections 6 to 9 of CASL, then you may be required to pay an administrative monetary penalty (AMP). The maximum amount of an AMP, per violation, for an individual is $1 million, and for a business, it is $10 million. CASL sets out a list of factors considered in the determination the amount of the AMP.”

“Yes, directors, officers, agents and mandataries of a corporation can be liable, if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation.” (Source: Canadian Radio-television and Telecommunications Commission (CRTC))

Changes to CASL

The changes are:

  1. The end of the “transitional period”
  2. The prohibition of “right of private action”

Since 2014, you could continue communicating electronically with clients when you had an “existing business relationship” (EBR) with them. (See the definition of an EBR, in the graphic below.) The EBR implied that the client has consented to be communicated with, or receive CEMs from you. If a person has purchased services, accepted a business opportunity, or entered into a contract with you or your company, you were permitted to send that person CEMs for up to two years following the last date of the business interaction, according to the rule. It implied consent.

If they actually ticked off the little box at the bottom of your communiques that subscribes them to your communications, then they had given their consent expressly. That’s even better.

Do remember that you cannot grow your market or client base by just making like a vampire and keep sucking the blood out of a handful of clients. New EBRs have to be entered into and consent has to be obtained, one way or another.

The difference between implied and express consent. (Source: CRTC)

Pdf version: CASL_Infograph3_Eng

The details

  1. End of transitional period of 3 years, starting 2014

The transitional period ends on July 1, 2017 for the EBR and Existing Non-Business Relationship (Non-EBR) exception to getting implied or express permission. There is no more exception and no more transitional period. You have to get permission for CEMs.

The transitional provision in section 66 of CASL allowed implied consent to be deemed for three years in the case of an EBR/Non-EBR, provided there had been previous CEMs exchanged.

In practical terms, this just means that after July 1, 2017, you have to make sure your email lists only include those with whom you have had business relationships within the past two years (in other words, since July 1, 2015) and not the past three years (as was the case during the transitional period), if you are relying on implied consent. Where possible, express consent should be requested. (Source: CPRS)

Going forward, if the implied consent is older than two years, then it is no longer valid.

2. Right of private action

The private right of action was supposed to go “live” as of July 1, 2017, allowing private individuals and legal persons to file lawsuits against spammers. However, in an order of the Cabinet dated June 2, 2017, Parliament halted this process indefinitely, effectively suspending the private right of action and leaving open only the government right of action. A person or business can report a suspected violation to the Spam Reporting Centre, which gathers intelligence to support the enforcement of CASL. (Source: CPRS)

What are you supposed to do now?

CASL 2017 Update – Process for compliance (©Red Pennant Communication 2017)

CASL update 2017 – CASL 2017 Update pdf version – Process for compliance (©Red Pennant Communication 2017)

  1. If you have this under control, then wow! You are exceptionally organized. Congratulations.
  2. If not, remove the names of the people to whom you send CEMs, if the EBR dates from before July 1, 2015.
  3. If you have no client database with current information, it’s about time to pull it together.
  4. Ensure that all your client-facing and client-communicating staffers know about this and do their bit to fix the situation.
  5. Send your clients an email to try and get their express consent – which makes things much easier, since it is not time-dependent.
  6. In all your CEMs – from whoever it comes in the company – ALWAYS include:
    1. Sender’s name/Business name
    2. Sender’s mailing address and an email address, web address or telephone
    3. A subscribe/unsubscribe mechanism
  7. If someone unsubscribes, their details should automatically be removed from the client database.
  8. If not automatically, then someone should be paying constant attention to administrating the “unsubscribers”. (Think of people “unsubscribing” as a good indicator of your relationship with that client. Ask yourself why they don’t want to hear from you, and what you’re going to do about it.)
  9. Keep a record of who subscribes/unsubscribes, and when. (See the graphic, above.)
  10. If you are putting that “unsubscribe” option at the bottom of your emails and it does nothing, then you’ve got a problem you’d best be attending to in a hurry.
  11. If you are too otherwise occupied or feel you are too well-known to use a proper email signature, then let this be your kick up the wazoo to get your act in gear.

Are there ways around this? Yes and no.

  1. No. The work has to be done to get up to date with the CASL amendments.
  2. No. A client database which is correct and up to date is the foundation of any business – and now CASL requires it.
  3. Yes. Communicate face to face, or revert to paper communications, and (re)establish a business relationship that way. Remember to document it.
  4. Yes. Communicate via RSS (online web feed) or email updates direct from your website or via a Social Media platform. If a user clicks on the “subscribe” or “follow” button they are giving express permission to be communicated with. They WANT to hear from you. So hop to it, already.
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