On February 25, 2013 the CRTC staff held an informal consultation with industry and consumer groups following the October 2012 release of CRTC’s guidelines regarding the interpretation of its CASL regulations (the “Consultation”) (To read a more detailed analysis of the Guidelines issued by the CRTC, see our related post on this topic). On April 3, 2013, the CRTC published a brief report describing the discussions that took place during the Consultations.
The objective of the Consultation “was to facilitate a focused conversation and gather useful information regarding issues that businesses and consumer groups foresee when CASL comes into force.” The discussions focused on six topics, each of which is listed below together with a brief summary.
The report summarizes the concerns raised by participants, but does not provide solutions or concrete responses to any of the issues raised. It does, however, set out two “key conclusions”: (1) “there is no one-size-fits all answer that will assist every business in complying with CASL, as context is critical to an appropriate interpretation in the circumstances of each case”; and (2) businesses “require assistance in the form of greater clarity on certain provisions of CASL, and that the CRTC consider providing a framework of guiding principles to underpin compliance expectations.”
These key conclusions together with the discussion of issues at the Consultation will “serve to inform future compliance and communications materials for the purpose of assisting business in complying with the legislation and empowering consumers to protect themselves.”
Topics of Discussion at the Consultation:
- Means of obtaining “express” consent: Participants discussed the need for additional clarity on a number of issues concerning the procurement of express consent, including: (1) whether or not express consent could be inferred from circumstances such as leaving a business card, or whether there must be a clear statement of express consent; and (2) whether express consent could validly be obtained by having a consumer sign or electronically submit a user agreement.
- Proof of consent: Participants discussed the need for clarity on what would be considered adequate proof of consent. The examples provided in the guidelines were considered by many to be too narrow and limited in their scope of relevance.
- Section 66 of CASL and the three-year transitional period: Participants discussed the need for additional clarity regarding consent obtained prior to the coming-into-force of CASL and the extent to which such consent need conform to the CASL’s requirements.
- Obtaining consent to send a commercial electronic message (CEM) – seeking consent for affiliates: Participants raised a number of concerns with the requirement to identify people on whose behalf CEM’s might be sent. Particularly the need for both context and the consumer’s “reasonable expectations” to play a role in the application of this requirement.
- Prescribed information in a CEM – “on behalf of”: Participants discussed a number of issues in determining when the “on behalf of” provisions of CASL would apply. Specifically, discussion centered around four sub-topics that highlight the material impact of the ambiguity in these sections in specific cases, including: (1) Email Service Providers; (2) Direct Marketing; (3) Gift Subscriptions; and (4) the Unsubscribe Mechanism.
- Installation of computer programs: Participants discussed numerous and varied concerns with the impact of CASL’s provisions regarding the installation of computer programs. Specifically, concerns were raised regarding: (1) the point in time at which express consent would be required; (2) the impact of the subject provisions on the installation of software updates, and which types of updates could be considered part of the original consent; (3) what types of consent would be required during computer repair (i.e. would a technician need to procure consent to add or remove programs in the process of repair); (4) how to assess and apportion liability, especially in the application marketplace for mobile phones and tablet computers; and (5) how the due diligence defense will apply in the context of a private right of action.
CASL is expected to come into force in late 2013 or early 2014. There are two sets of regulations accompanying the act, one published by the CRTC, and the other published by Industry Canada. The final CRTC Regulations were published in March 2012. The draft Industry Canada regulations were published in January of 2013, and were subject to a 30 day public comments period (To read a more detailed discussion of the 30 day public comment period, see our related post on this topic). The Industry Canada regulations are expected to be finalized within a matter of months and will be followed soon after by a final date for CASL’s coming-into-force.