Canadas New Anti-Spam Legislation What you need to know to comply - - PowerPoint PPT Presentation
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What you need to know to comply
business law, advocacy and intellectual property law
practice group
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July 1, 2014, which prohibits:
(“harvesting addresses”),
force Jan 1, 2015).
consent to receive a CEM,
unsubscribe.
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CASL creates an exception to the need for consent for certain “transactional” messages. This exception will apply to messages that solely:
service;
commercial transaction between the sender of the message and the recipient
safety or security information about a product or service the recipient has purchased
use by the recipient of a product or service offered under a subscription, membership, account, loan or similar relationship
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CASL creates an exception to the need for consent for certain “transactional” messages. This exception will apply to messages that solely:
involved/participating;
a pre-existing agreement It is essential to note that these messages are only exempt from the consent requirements, they are not exempt from the in message disclosure, including the unsubscribe mechanism.
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“Family” “Personal relationship”
Marriage; A common-law partnership; A legal parent/child relationship;
where:
Those persons have had a
direct voluntary two way communication.
Must have had direct, voluntary
two way communications;
Must be reasonable to conclude
the relationship is personal considering relevant factors such as shared interests, opinions, and experiences.
Messages sent by or “on behalf” of a person with a “family” or “personal” relationship with the message recipient are exempt from the consent and message content requirements. “Family” or “Personal” relationship are defined terms:
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The regulations provide exceptions for the following message classes:
relating to the affairs of the organization
a relationship, where the message relates to the activities of the recipient
solicitation from the recipient
charity
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The regulations provide exceptions for the following message classes:
reasonably expects it to be received in a foreign state listed in the Regulations, if the message complies with the law of that state
providing the account may send messages
disclosure and an unsubscribe mechanism in its interface are exempt from the message requirements, but not the consent requirements.
right, to notify of a legal right
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to a person if:
relationship, family relationship or personal relationship with both the person that they referred, as well as the sender of the message
disclosed in the message, and the message states that it is sent pursuant to the referral
NOTE: the sender of the CEM can ask for express consent to send CEMs within the single message, but if express consent is not given, the sender cannot send additional CEMs
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his/her electronic address, (2) without indicating that he/she does not wish to receive CEMs, and (3) the CEM is relevant to the recipient’s business, role, function or duty in a business or official capacity
address to the sender, (2) without indicating that he/she does not want to receive CEMs, and (3) the CEM is relevant to the recipient’s business, role, function or duties in a business or official capacity
“existing business relationship” or an “existing non-business relationship, as defined in CASL
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“existing business relationship” arises:
product or service from the sender within the (2) years prior to sending the CEM
contract, which expired within the (2) years prior to sending the CEM
application about a purchase or lease of a product or service within the previous 6 months before the CEM is sent Note: to rely on implied consent, you must have systems that allow you to track expiry dates.
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existing business relationship”
involved the sending of CEMs as part of the relationship, CEMs can be sent to the recipient for a (3) year period after the July 1, 2014 coming-into-force date (i.e., June 30, 2017), unless the recipient indicates that they don’t want to receive the message Note: the message must comply with the prescribed message content requirements, including the unsubscribe, which must be honoured
unless:
exclusion applies; and
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A person who seeks express consent under CASL must, when requesting consent, set out “clearly and simply”:
person on whose behalf consent is sought carries on business;
telephone number, website, or email address of either the person seeking consent, or if different, the person on whose behalf consent is sought
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must be “positive or explicit”
provided they are “positive and explicit”. For example, entering an email address if you wish to receive emails, then hitting a “submit” button
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recipient may unsubscribe from all CEMs or a specified class of CEMs
practicable, other electronic means
The required contact information must remain current for a minimum of 60 days after the message is sent.
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The regulatory impact statement for the Regulations confirms Industry Canada’s position that valid express consent obtained before CASL comes into force “will be recognized as being compliant with CASL”. However, Industry Canada also expressly noted that in some cases email addresses that may be used under the current privacy legislation may no longer be used under CASL.
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Email addresses are most likely to be unusable following July 1, 2014 where an organization is relying on ‘implied’ consent under PIPEDA, and that consent does not fall into one of the defined categories of implied consent in
an electronic message so it’s delivered to a destination
management
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apply to seeking consent for C.E.M.s also apply
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computer in Canada or where the CEMs are received
the sender is located outside of Canada. This is also true for other CASL prohibitions, including those related to the installation of computer programs and related provisions
apply to CEMs sent to recipients outside of Canada, so long as: (1) it is reasonable to believe that the recipient is not on a computer system in Canada, (2) the CEM complies with the anti-spam laws of the country to which the CEM is sent; and (3) the country is among the countries that are listed within the Regulations
individual
considered:
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who allege they have been affected by a violation. If the action is successful in court, the court may
and
each day on which a contravention occurred.
force date, and will not be in place until July 1, 2017.
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to prove it in the face of a challenge
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Partner brian.fraser@gowlings.com 416-862-4293
Brian advises on all aspects of advertising and marketing law, including ad copy review for all media (print, broadcast and internet), promotional contests, packaging and labelling requirements, comparative advertising and claims support. His practice also includes representing clients in trade dispute proceedings administered by Advertising Standards Canada. The clients he advises include advertising and promotion agencies as well as some of Canada’s leading telecommunications, retail and packaged goods companies. With a background in corporate and commercial law, Brian also advises with respect to advertising agency agreements and other contracts relating to the provision of advertising, sponsorship, marketing and promotional services. Brian Fraser is a partner in Gowlings' Toronto office, co-leader of the Firm‘s Advertising, Marketing and Regulatory Affairs National Practice Group and co-leader of the Privacy/CASL Practice Group. He has been practising in the field of advertising and marketing law for more than 25 years.
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Partner wendy.wagner@gowlings.com 613-786-0213
In her international trade law practice, Wendy represents the firms’ clients in matters involving NAFTA, WTO, anti-dumping and countervail, export & import controls and all aspects of customs (tariff classification, valuation, AMPS penalties). She advises pharmaceutical and biopharmaceutical clients on issues pertaining to the WTO TRIPS Agreement. In addition, she advises clients regarding customs compliance, AMPS and and other legal issues of significance to the transportation industry. She has appeared as counsel on trade related matters before the Canadian International Trade Tribunal and the Federal Court of Canada. In her media and defamation practice, Wendy defends clients against defamation law suits, acts as counsel for the media in Canadian Charter of Rights and Freedoms cases involving freedom of the press, and represents the media to oppose publication bans and other restraints on publication. Wendy also advises clients on matters pertaining to Access to Information legislation. Wendy Wagner is a partner in Gowlings' Ottawa office, leader of the firm‘s Transportation and Logistics Group and co-leader of the Privacy/CASL Group. Her practice focuses on international trade law and media law.
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Partner peter.murphy@gowlings.com 416-369-4674
Peter’s technology law expertise includes the negotiation and drafting of joint venture agreements, supply, development and distribution agreements, technology licences, maintenance and support agreements, outsourcing agreements and financing arrangements. Peter has acted for many technology industry clients, including AMD (Advanced Micro Devices, Inc.), on a wide variety of technology law matters. Peter’s privacy law expertise includes defending clients from privacy breach complaints and investigations by Canada’s Privacy Commissioner, advising clients on compliance with privacy laws including conducting privacy assessments, drafting privacy-compliant contracts for complex business and financial transactions, preparing corporate privacy policies, and helping clients prepare for CASL, Canada’s anticipated anti-spam legislation. Peter Murphy is a partner in the Business Law Group and co-leader of the Privacy/CASL Group. His practice has a special focus on technology, privacy, procurement and commercial law.
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Associate chris.oates@gowlings.com 416-369-7333
Chris’s practice includes advising clients on privacy law, including drafting and reviewing privacy policies and advising on privacy in the context of social media, consumer marketing campaigns, electronic commerce and Canada's new anti-spam legislation. His practice also includes all matters pertaining to direct-to-consumer marketing, including advertising and packaging copy review; contest design and review; advertising in social media; drafting and reviewing talent, media, and sponsorship agreements; open credit advertising; and regulatory law pertaining to foods, alcoholic beverages, cosmetics and drug products. Chris Oates is an associate in Gowlings’ Toronto office, practising in the area of privacy, advertising, marketing and regulatory law, with significant experience in Canada’s new anti-spam law.
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Visit: www.gowlings.com Email: brian.fraser@gowlings.com wendy.wagner@gowlings.com peter.murphy@gowlings.com chris.oates@gowlings.com