April 5, 2017
Canada’s Anti-Spam Legislation (CASL) establishes a highly restrictive regime for the sending of marketing and promotional emails and texts (commercial electronic messages or CEMs). In three months’ time, the three-year transition that allowed companies to rely on a particular form of implied consent based on a prior relationship and prior communications will come to an end. Companies that wish to use this transition period to attempt to obtain express consent to continue to communicate with certain recipients only have a short time left to do so.
Overview of CASL
The provisions of CASL relating to the sending of CEMs came into force on July 1, 2014. The CEM provisions (reflected in section 6 of CASL) are built around two key pillars: the requirement to ensure that there is prior consent to send a CEM to a recipient, and the requirement to ensure that the CEM contains prescribed information and an unsubscribe mechanism that functions in a particular way.
The term CEM is defined broadly to capture virtually all emails, texts or other electronic messages that are sent to an electronic address and which seek to promote commercial activity. The categories of implied consent that may be relied on to send CEMs are narrow and time-limited. Express consent to send CEMs must be obtained in a prescribed format and the onus is on the sender of the CEM to prove that express consent was properly obtained.
Three-year Transition Period Ends July 1, 2017
An important category of implied consent to send CEMs to a recipient exists where there is an existing business or non-business relationship, as specifically defined in the legislation. For example, implied consent based on an existing business relationship exists if the recipient has made a purchase of goods or services within the prior two year period, has entered a written contract that expired within the previous two years, or has accepted a business opportunity within the previous two years. All of the categories are time-limited in some manner, i.e. implied consent has the potential to expire.
Section 66 of CASL provides for a three-year transition period, that commenced with the coming into force of the legislation in July 1, 2014. Under this transition period, organizations are permitted to send CEMs to recipients with whom they had formed an existing business or non-business relationship, if that relationship was created prior to July 1, 2014, and if the relationship had involved the exchange of CEMs with the recipient. This law specifies that, for purposes of using the transition period, the definitions of existing business and non-business relationship apply “without regard to the period mentioned in that subsection”. In other words, if the organization had at any time prior to July 1, 2014 established a business or non-business relationship with the recipient in accordance with the criteria set out in those definitions, and that relationship was also characterized by a history of exchanging CEMs with the recipient, the organization could rely on the transition period in order to send CEMs.
On July 1, 2017, the three-year transition period set out in section 66 of CASL that commenced on July 1, 2014 for CEMs will end. Accordingly, the transition period cannot be relied upon for any CEMs sent after July 1, 2017. In addition, it is important to remember that any business or non-business relationship created after July 1, 2014 is not subject to the three-year transition period, and must comply with the time periods specified in the implied consent provisions (sections 10(10) and 10(13) of CASL).
Next Steps for Organizations
As the transition period is rapidly coming to an end, organizations who have made use of or wish to make use of the transition period should ensure they review their CASL compliance strategies and mechanisms. The enforcement bodies have strictly interpreted CASL and rigorously enforced the law, with the effect that any intended use of the transition period to obtain express consents must be carefully documented, recorded and verified. Organizations who have relied on the transition period should also implement a reliable system for upgrading the consent status for existing contacts after the expiry of the transition period.
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