Canada’s Anti-Spam Legislation (“CASL”) will be in force on July 1, 2014. As you are preparing your organization for compliance, there is new regulatory guidance from the Canadian Radio-television and Telecommunication Commission (“CRTC”) regarding the transitional provision under section 66, as well as a new compliance bulletin.
Clarification of Transitional Provision
CASL provides a three-year transitional period, starting July 1, 2014, which allows organizations to rely upon implied consent where there is an existing business relationship or existing non-business relationship. During this period, a sender may send commercial electronic messages (“CEMs”) to recipients with whom the sender has an existing business relationship or an existing non-business relationship, if the relationship includes “the communication between them of commercial electronic messages.” The legislative provision does not specify whether the messages need to be two-way or one-way, and might even imply a requirement for the recipient to have responded.
Organizations and individuals may take advantage of the transitional period to seek express consent for the continued sending of CEMs. Express consent does not expire after a certain period of time has passed. It does not expire until the recipient withdraws their consent.
In interpreting the transitional provision, the CRTC has provided some welcome relief and has revised its guidance to address this issue. It has confirmed that organizations can access the transitional period even if the electronic communication is one-way, for example, from the sender to the recipient. This means that you can continue to send messages for three years if: (i) your organization has an existing business relationship or existing non-business relationship with the recipient, (ii) you have sent two or more CEMs before July 1, 2014, and (iii) the recipient does not unsubscribe from receiving further CEMs.
CRTC Compliance and Enforcement Bulletin – 2014-326
The CRTC has released a new Compliance and Enforcement Bulletin (“Bulletin”) addressing corporate compliance programs. The Bulletin addresses compliance under CASL as well as the Unsolicited Telecommunication Rules, which are applicable to telemarketing. In its guidance, the CRTC suggests the following components be addressed when designing a corporate compliance program: senior management involvement; risk assessment; written corporate compliance policy; record keeping; training; auditing/monitoring; complaint-handling system, and corrective (disciplinary) action. Additionally, the CRTC provides specific guidance in the Bulletin addressing compliance points under these components for both the anti-spam and telemarketing regimes.