Preparing Yourself for CASL’s New Private Right of Action

Posted by Surround Integrated on February 24th, 2017

On July 1st, 2017, CASL (Canada’s Anti-Spam Law) compliance programs will see some major updates. This will be a significant day for Canada’s Marketing community and many organizations have already pooled resources to ensure their compliance with the new guidelines. The CMA (Canadian Marketing Association) held a constructive workshop for members to better understand these changes, here are the key observations and conclusions from each area.

Third Party Marketing & Referral Compliance Updates

  • Recent rulings will have CASL see third party usage of implied consent to send CEMs (Customer Experience Management) as a violation and the party with the consent should be recognized as the sender.
  • While providing an opt-out on behalf of two organizations gives consumers more control, it is not entirely necessary.
  • If a message is being sent out on any platform with messages of multiple parties included, the relationship is with the list owner and thus they will be the ones to manage unsubscribe.

B2B Updates

  • The legal burden of proof will be on the sender that the content of a CEM is tied to the role of the recipient.
  • The CRTC (Canadian Radio-Television & Telecommunications Commission) will now consider the size of your business and previous offenses when assessing an AMP (Audience Management Platform).
  • When collecting contact information in any form, you must always ensure that how you intend to use that information is prominently displayed.

Consent Guideline Update

  • Communication in any form with implied consenters based on lists you inherited from any Existing Business Relationships has become increasingly dangerous and should not be continued. If you are not sure if you fall into this category, the CRTC will consult with you on any questions you may have.
  • It is now vital that marketers be completely transparent with customers when asking for consent.

Exceptions – Where you can Draw the Line

  • Service type emails will be exempt from CASL’s consent requirements according to Section 6.6. Technically, you will be required to include an unsubscribe, this can be done by giving the recipient the option to unsubscribe from marketing communications and not future service messages. Service emails and marketing communications should also not be mixed.
  • Surveys are now only considered CEMs when the incentive used will be benefiting the company that is deploying the survey. If you ensure that any incentive being used remains unrelated to your business, they will be exempt from CASL.

What to Expect on July 1, 2017

  • Section 66 details the expiration of 3-year transitional implied consent for CEMs rule, be sure to re-engage with your 3-year transitional provision people before the July 1st date that was mandated.
  • People can be labeled by colour based on which level of consent is implied. Express consent can be labeled green, unsubscribed with red and those relying on either the 3-year, 2-year, or 6-month consents with a yellow light.

Managing Proper Record Keeping Is Essential

  • As a marketing company, you should plan in advance to be ready for any regulators and/or class action. Ensuring that annual training is provided to your staff and written policy guidelines are constantly adhered to can go a long way to making sure no problems arise.
  • Any business cards you receive should be tracked in your CRM, whether kept physically or via digital copy.
  • Be sure to track consents across all messing types including SMS, email, social media, etc.

Key Social Media Guidelines

  • Anything “posted” will not be qualified for coverage by CASL.
  • Instant messaging platforms, on the other hand, are covered but come with certain CASL compliant features.
  • Remember that most social media platforms already come with CASL compliance built–in (identification, unsubscribe, consent).
  • The act of publishing does not fall under CASL but tweets are allowed to be CEMs in nature.  
  • You will be allowed to rely on the B2B provision given the following: if the email address is conspicuously published, there is no disclaimer, and the message is relevant to the recipient’s business role.
  • Be sure that if you are relying on the personal relationship exemption, that you are indeed affiliated with said person on social media and not only their alias.

Software Guidelines

  • CASL regulation of cookies should be regulated, but Parliament has added a new exception expanding the scope which can now be openly challenged and is open to interpretation.
  • Another key takeaway here is that the installation of a mobile app from an app platform can presumably be regulated by CASL. When a consumer clicks “install” this can be considered as adequate consent, unless there is malicious software operating that the consumer does not know about.

 

The biggest change and most potentially damaging provisions of the new law coming into force is the private right of action. Along with the fact that businesses communicating electronically will be set to lose the benefit of CASL’s transitional provisions as well, we advise that you prepare your organization for the substantial changes and review your compliance programs. As the risks and potential costs of non-compliance are set to grow exponentially because of PRA, it pays to keep up to date with any new publications from the CMA.

For new news on any further changes to the CASL or updates from the CMA, follow the Surround Blog