Does the Target send commercial electronic messages (CEMs) from Canada and/or to recipients in Canada? CEMs include any email, text message or other direct electronic message that wholly or partly encourages participation in a commercial activity. Not limited in scope to bulk messages.
Does the Target send CEMs based on express or implied consent? If the Target sends CEMs based on express consent, review the Target's express consent language and
process to ensure they meet CASL's prescriptive requirements. If CEMs are sent based on implied consent, the basis upon which consent is claimed to be implied
should be verified. Does the Target ever rely on an exemption from CASL to send CEMs? If yes, confirm that the
exemption applies and whether it is a full or partial exemption. How is evidence of consent (express or implied) maintained? Recall that the sender bears the burden of
proving they had consent to send a CEM. Review all template CEM footers to ensure that the required identification and contact information is
included along with a valid unsubscribe mechanism that meets prescribed requirements. Verify how the unsubscribe mechanism works and how unsubscribe requests are recorded and
implemented by the Target to ensure compliance with prescribed requirements (including timing requirements). Does the Target have a CASL policy? Are employees trained on CASL compliance? Has the Target ever received a complaint relating to its CEMs? Has the Target ever been the subject of a regulatory inquiry, investigation, notice or enforcement action relating to its CEMs? If the Target sends CEMs or collects electronic addresses on behalf of others, has the Target complied with all contractual obligations relating to these activities?
June 2017 | Blake, Cassels & Graydon LLP | blakes.com
Where a purchase involves the transfer of personal information from Target to Purchaser, privacy implications will need to be carefully considered in addition to CASL-compliance issues.
For asset purchases, ensure that: Any express consents from Target's customers, suppliers, vendors or others form part of the purchased assets Purchaser acquires or has access to records sufficient to demonstrate compliance with CASL (e.g., evidence of consent, records of unsubscribes, etc.).
Carefully consider which implied consents arising from Target's existing business relationships will transfer with the purchased business pursuant to CASL, s. 10(12).
Obtain representations and warranties from the Target relating to the absence of CASL-related complaints, or regulatory investigations, inquiries, notices or enforcement action.
Obtain representations and warranties from Target relating to CASL compliance.
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Blake, Cassels & Graydon LLP | blakes.com