Legal Update: Counting Down to Canada’s Anti-Spam Legislation (CASL) – Does CASL Make You A “Spammer”?
April 15, 2014
By David Fraser, at McInnes Cooper
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The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals and organizations it affects now have less than three months to create, implement or update their CASL compliance program.
Take our 10 question quiz to find out if CASL affects any of your electronic communications or those of your organization. If it does, it’s time to act now.
THE CASL “SPAMMER” QUIZ
CASL is coming soon – so you need to find out now whether it affects you or your organization. Answer “Yes” or “No” to each of the following 10 questions for yourself or for your organization:
- I use e-mail to solicit donations or sponsorships – but only to fundraise for charities, or for political contributions.
- I use e-mail to send customers newsletters – but they provide information about my products/services, and don’t ask them to contact me.
- I only send emails to customers/contacts who asked me to, and they can e-mail me if they want me to stop sending them.
- In my business, I rely on referrals and contact prospects via e-mail.
- All of the customers/contacts that I e-mail are businesses or business people – not individual consumers.
- I do one (or more) of these things, but I use instant messaging, text messaging, social media or web forums – not e-mail.
- I use a third party company to communicate by email with my customers/contacts on my behalf.
- I communicate directly with my customers/contacts by email, instant messaging, text messaging, social media or web forums – I don’t use a third party company to do it on my behalf.
- I purchase electronic mailing lists from third parties; the people on the lists know their e-mail information could be given to others.
- I use “closed systems” like LinkedIn to reach out to prospective customers.
THE SCORE: ARE YOU A CASL “SPAMMER”?
It’s easy to sit back and believe CASL is targeted at “spammers” – big companies that bombard us with electronic information that we often don’t want – but if you answered “yes” to even one of these 10 questions, then CASL affects you and/or your organization:
- What. CASL will apply to just about every form of “commercial electronic message” (CEM) – which CASL defines broadly.
- Who. It will apply to just about every business – from sole proprietors and independent contractors, to multinational corporations – and every person sending a CEM.
- Where. It applies to all CEMs sent to, from or within Canada.
- When. CASL takes effect on July1, 2014; every CEM sent on or after July 1st must comply.
- Why. The final version of CASL does protect consumers against organizations in the business of compiling and selling email lists – but it also encompasses all CEM senders. CASL will move Canada from an “opt-out” to an “opt-in” regime for all electronic-based marketing: with few exceptions, if a person/organization wants to send a CEM within or into Canada, it needs the recipient’s prior consent.
The “hype” surrounding the implementation of CASL is reminiscent of that which surrounded PIPEDA (Personal Information Protection and Electronic Documents Act) – but CASL will have significant consequences for individuals and organizations that don’t comply:
- Monetary Penalties of up to $1M on individuals and $10M on other entities for a CASL contravention
- Potential Liability of employers for certain employee violations, and personally for corporate directors and officers for a corporation’s violation
- Criminal charge of obstruction of a CASL Investigation
- Private Right of Action for a person or corporation affected by a CASL contravention effective July1, 2017
If CASL affects you or your organization, it’s time to act:
- Audit. Determine whether your current processes comply.
- Revise. If they don’t comply, determine what changes you must make – and make them.
- Act Now. An electronic message asking for consent to a CEM is itself a CEM – so ask early.
Visit our CASL Knowledge Page at www.mcinnescooper.com/services/privacy/casl/ to learn more about CASL.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper CASL Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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