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How to Document and Store Consents

Every company or party sending out CEMs should establish and utilize a database that logs the express consents acquired. Consent may be obtained orally or in writing, and the onus is on the sender of a CEM to prove that consent was acquired. If you have obtained express consent (which does not expire), then you would have followed (what CASL calls) documentation.

However, care must be taken with regards to social networking sites. If someone likes or follows your page, it will not automatically follow true documentation of express consent as required by CASL. Steps taken to request express consent should be documented and stored properly for future purposes in the event that any claim or objection arises. Courts will consider any attempts made to get express consent and efforts to comply with CASL rules. This is important because any person alleging to have obtained consent bears the evidential burden of proving such consent.

Therefore, it will be important for companies to implement clear policies that provide for the proper documentation of consent and the continuous updating of customer email lists and databases. In many cases, companies will need to obtain “fresh” consent from their customers to ensure that they are CASL-compliant with proper documentation. Oral consent may be verified through an independent third party or by using a complete unedited audio recording.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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CASL Enforcement

Related amendments to the Competition Act and PIPEDA are enforced by the Competition Bureau and the Office of the Privacy Commissioner of Canada (OPC) respectively. The Competition Bureau is an independent law enforcement agency which ensures that Canadian businesses and consumers prosper in a competitive and innovative marketplace. The OPC of Canada protects the personal information of Canadians.

Enforcement by the Competition Bureau The Competition Bureau was initially responsible for overseeing the Competition Act.

Under CASL, the Competition Bureau will be responsible for investigating false and misleading CEMs and deceptive marketing practices in the electronic marketplace, including false or misleading sender or subject information and web links, as well as website content. Although the Competition Bureau will not have the power to impose monetary penalties, any person affected by a violation of CASL and a related amendment to the Competition Act will be able to seek damages through a civil remedy, see

Although the Competition Bureau will not have the power to impose monetary penalties, any person affected by a violation of CASL and a related amendment to the Competition Act will be able to seek damages through a civil remedy, see section: Civil Remedies for Businesses and Consumers”.

Enforcement by the Privacy Commissioner of Canada The Privacy Commissioner of Canada was initially responsible for overseeing PIPEDA. Under CASL, the Commissioner will also be responsible for investigating the collection of personal information through non-consensual access.

Although the Privacy Commissioner of Canada will not have the power to impose monetary penalties, any person affected by a violation of CASL and a related amendment to PIPEDA will be able to seek damages through a civil remedy, see section: Civil Remedies for Businesses and Consumers”.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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CASL Penalties for Businesses and Consumers

CASL should not be taken lightly as, in addition to the broad application of the Act, there are considerable penalties for violations of its provisions. If you are a corporation, the CRTC will have the authority to impose administrative monetary penalties, for violations of CASL, of up to $10 million per violation. A unique aspect of CASL is that businesses and consumers are also provided with the power to bring a civil suit and seek damages if the CRTC, the Competition Bureau, or the Commissioner have not done so.

If you are an individual, the penalties for successful complaints are statutory damages of $200 per violation and up to $1 million for each day on which the violation occurred. The process itself will likely be outlined more specifically once the legislation comes into force.

Three interesting things to note about the enforcement of CASL are:

  • False claims: any person can sue a sender for up to $1 million. But, if their claims are found to be incorrect, they will be required to pay court/legal fees.
  • Due Diligence: if you can demonstrate that you made very strong efforts to comply with all the rules and done everything to obtain proper consent, then courts will take this into consideration.

    It is for this reason that documentation is extremely important.

  • Extended liability: officers of an organization can also be held accountable for the messages sent out by their organization.

Considering the broad application and strict penalties imposed by CASL, all organizations will need to assess the extent to which they engage in the sending of commercial electronic messages as part of their marketing and business strategies, and thus the extent to which they may be exposed to CASL regulation.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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CASL – What are Commercial Electronic Messages?

CEMs, in the context of CASL, include any message sent by means of telecommunication, including text, sound, voice, and/or image message.

Furthermore, a CEM has, with regard to the content, hyperlinks or information contained within the message whose purpose, as determined by a reasonable individual, is to encourage participation in commercial activity.

This commercial activity can include:

  • An offer to purchase, sell, barter, or lease a product/service.
  • An offer to provide a service or opportunity.
  • Advertisements and/or promotions.
  • Promotions of individuals, if the promotion of that individual does anything referred to in (a) to (c) below.

A business operating a commercial activity of any kind, whether conducted for profit or not, will have to ensure compliance with CASL.

This means that newsletters sent by charities, non-profits, and political parties that ask for donations or that publicise a lottery could be caught under this legislation. Unlike CAN SPAM, which covers only email, CASL will cover all CEMs since the legislation’s main goal is to promote confidence in electronic commerce. The law applies broadly to any CEM that is sent from or accessed by a computer system located in Canada.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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CASL – Can you email to addresses obtained through social networking sites, such as LinkedIn?

Sending a CEM to an email obtained through a social networking web page is permissible under CASL. An email displayed on a social networking site would be considered a conspicuous publication, and CEMs can be sent to these emails, without consent, if (i) that individual has not indicated that he/she does not wish to receive unsolicited emails, and (ii) if the CEM relates to the recipient’s business role and/or function.

Although there is no case law to this point presently, persistent emailing will likely not be impliedly accepted, as it would be more than one message and not a message so our recommendation is to send an inquiry email to your counterpart asking if he/she would like your solicitation (e.g. to be added to your newsletter) wait for a response, and then add. This will add more steps in your process, but these steps are recommended. However, a simple like or a follow on sites such as Facebook or Twitter is not express consent for the purposes of CASL.

Within that media platform you would have only obtained that TYPE of permission but it does not follow true documentation which is required by CASL. Therefore, from a common-sense perspective (until the legislation comes into force), you cannot simply move all those individuals who have liked or followed you on a social networking site onto an email list unless they have expressly opted-in; otherwise it would be considered spam.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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Composition of a Marketing Message to Comply with CASL

It is important to understand how to properly construct a CEM that complies with the regulations outlined within CASL. The construction of CEMs that violate any of the conditions in CASL has the potential to cause monetary and reputational damage. If consent was obtained through an offer, it is important to be careful how these incentives are worded.

The offer should clearly indicate to the other party that, by taking up the offer, they are giving their consent to opt-in to CEMs from the business. CEMs must clearly identify the sender and include contact information for the sending party and all related advertisers, as follows:

  • The identity of the sender must include the name of the person or business sending the CEM; and, if the CEM is sent on behalf of another person or business, then the name of that person or business must also be clearly provided.

  • The contact information of the sending party must be included within the CEM. This requirement can be satisfied by including a mailing address, as well as: a telephone number, an e-mail address, or the web address of the person sending the message, or, if different, to identify the person on whose behalf the message is sent.

No fly-by-night operations allowed: Â the contact information provided must remain valid for at least 60 days.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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Spam Messages and What You can do to Stop Them

Do you ever get annoying emails from companies you’ve never heard of? Or continuous emails from a company you once agreed to receive an email from years ago? Be aware that you have a right to have these messages stopped.

Under Canada’s Anti-Spam Legislation (“CASL”) which came into force July 1, 2014, companies are allowed to send you commercial electronic messages (CEM). CEM’s cover a wide range of messages including messages that are sent to emails, instant messaging accounts, and social media accounts such as Facebook and Twitter. However, these messages are only permitted under certain circumstances, and the sender must provide an easy to use unsubscribe mechanism. An unacceptable unsubscribe mechanism would be a complex multi-step mechanism, such as being re-directed to a new page and then having to login with a username and password and then having to select an unsubscribe button. If you ‘unsubscribe’, they must stop sending you messages.

 

Consent

In order for a company to legally send you a CEM they must have either express or implied consent from you. Express consent consists of a clear unequivocal “yes” to receiving a CEM. If a box is pre-checked with “yes, I wish to receive messages…”, it does not count as consent. It has to include a positive action whereby you opt into receiving a CEM. This can include clicking the “yes” button yourself, or toggling acceptance, or entering your email address.

 

Companies can send you CEMs if they have implied consent from you. Consent is implied if the person who sends the message, the person who causes it to be sent, or the person who permits it to be sent, has an existing business relationship with you.[1] Examples of existing business relationships that allow a business to send a CEM include:[2]

  • the purchase or lease of a product, goods, a service, land or an interest or right in land, within a two-year period immediately before the day on which the message was sent or the bartering of any activity mentioned in this paragraph;
  • your acceptance, within a two year period before the day on which the message is sent, of a business, investment or gaming opportunity;
  • you have entered into a written contract with the sender of the CEM;
  • you made an inquiry or application, within the six month period immediately before the day on which the message was sent.

The above scenarios allow a company to send a CEM to you if you have interacted before or have done business with them within the defined time periods. This makes it essential for businesses to keep records of the last interaction with each customer, as the time period will be extended by each interaction.

 

Conspicuously Published Email Address

The easiest way for companies to legally send you CEM’s is if you have your email address conspicuously published. CASL assumes implied consent if the recipient has conspicuously published (meaning published in plain sight, for example, on a website or in a trade magazine) or disclosed an email address (information is given to you, for example, people giving you their business card or address), and has not accompanied that email address with a statement that they do not wish to receive unsolicited messages.

In addition, the CEM must be relevant to person’s business, role, functions or duties in a business or official capacity[3].

 

If you are receiving emails from companies you have never heard of, this is likely what they are relying on. If you wish to avoid these messages, you can place an explicit statement underneath your email stating that you do not want to receive any unsolicited messages to the email address above. If you do not have this message people can send you CEMs, but only if they are relevant to your business.

 

You can report CEM’s that break these rules. Simply forward the CEM’s to spam@fightspam.gc.ca, where they will be reviewed by the Spam Reporting Centre (SRC). The laws provide for maximum fines of $1million for individuals and $10 million for companies who break the CASL rules. As of July 1, 2017, there will also be a private right of action, which will allow individuals to take legal action against anyone not following the rules.

 

Takeaways

  • If you do not want to receive CEM’s and you have your contact information conspicuously published online, ensure you have a statement next to the email that states you do not want to receive unsolicited messages
  • Know that every CEM sent to you should have an easy to use unsubscribe mechanism. If the message does not then the sender can be reported and susceptible to punishment by the CRTC.
  • Beginning on July 1 2017 individuals will be able to take legal action on their own against those who contravene CASL.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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[1] CASL, s. 10(9)(a).

[2] CASL, s 10

[3] CASL, s. 10(9)(b).

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CASL Part II: B2B Messages and the Concept of Consent

Is my message spam?

Are you trying to use the web to reach out to as many people as you can to build your business? – Not so fast! Canada’s new anti-spam legislation (“CASL”), which came into force July 1, 2014, creates restraints on your ability to do this if you are sending commercial electronic messages (“CEM”). To qualify as a CEM, the message’s purpose must be to encourage participation in commercial activity. CEM’s cover a wide range of messages including messages that are sent to emails, instant messaging accounts, telephone accounts, and social media accounts such as Facebook and Twitter, as well as the broadly defined “any similar account”.

 

This means that if your business wants to send a CEM you must have either express or implied consent from the recipient. Without consent you risk heavy fines under the legislation.

 

Express Consent

Express consent consists of a clear unequivocal “yes” to receiving a CEM. This does not include pre-checked boxes that the potential recipient accepts. It has to include a positive action whereby the potential recipient opts into receiving a CEM.

This can include clicking the “yes” button themselves, or toggling acceptance, or entering their email address.

 

Implied Consent

There are two main categories of implied consent. These include an existing business relationship, and email addresses that are made public without a ‘do not contact’ statement. Each will be addressed in turn.

 

Existing Business Relationship

Consent is implied if the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship with the person to whom it is sent. Examples of existing business relationships that allow a business to send a CEM include:

  • the purchase or lease of a product, goods, a service, land or an interest or right in land, within a two-year period immediately before the day on which the message was sent or the bartering of any activity mentioned in this paragraph;
  • the acceptance by the receiver of the CEM, within a two year period before the day on which the message is sent, of a business, investment or gaming opportunity;
  • written contract entered into between the sender and receiver of the CEM; and
  • an inquiry or application, within the six month period immediately before the day on which the message was sent, made by the person to whom the message was sent to.

The above scenarios allow a company to send a CEM to another business if they have interacted before or done business with each other within the defined time periods. This makes it essential for businesses to keep records of the last interaction with each customer, as the time period will be extended by each interaction.

 

Conspicuously Published Email Address

Businesses seeking to make ‘cold calls’ will more likely rely on the ‘conspicuously published email address’ category of implied consent.

CASL assumes implied consent if the business contacted has conspicuously published (meaning published in plain sight, for example, on a website or in a trade magazine) or disclosed an email address (information is given to you, for example, people giving you their business card or address), and has not accompanied that email address with a statement that they do not wish to receive unsolicited messages. In addition, the CEM must be relevant to person’s business, role, functions or duties in a business or official capacity.

 

These requirements have several implications. First, you cannot simply find email addresses electronically and send them all CEM’s. Second, it would be prudent to record how you obtained the business’s email, and to verify that a ‘no unsolicited messages’ statement does not appear on the source where the email address was found. Third, because the CEM has to be relevant to the recipient’s business, you must know something about the recipient’s business, and be able to determine that your CEM is actually relevant to their business. The measure of relevance has to be has yet to be decided, but given that maximum fines range from $10 million for corporations, and $1 million for individuals, you do not want your business to become a test case!

 

Takeaways

  • Keep records of how you obtained implied or express consent, since in both cases you have the onus to prove consent.
  • When finding contact emails on business’s websites be sure to look for any language that states the address cannot be contacted for unsolicited messages
  • Be aware that even if you have an existing business relationship, CASL imposes time limits.

 

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This article is provided for informational purposes only and does not create a lawyer-client relationship with the reader. It is not legal advice and should not be regarded as such. Any reliance on the information is solely at the reader’s own risk. Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound offers a $10 per month DIY Legal Library which hosts tens of thousands of legal clauses, contracts, articles, lawyer commentaries and instructional videos. Find Clausehound.com where you see this logo.

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