The Canadian Radio-television and Telecommunications Commission has issued two important guidance documents regarding compliance with Canada’s anti-spam and online fraud act (commonly known as “CASL”) and related regulations. The guidance explains (with helpful examples and illustrations) how organizations may comply with CASL’s information disclosure, consent and unsubscribe requirements.
Canada’s anti-spam and online fraud act (commonly known as “CASL”) creates a comprehensive regime of offences, enforcement mechanisms, and potentially severe penalties (including personal liability for corporate directors and officers) designed to prohibit unsolicited or misleading commercial electronic messages (“CEMs”) and deter other forms of online fraud (such as identity theft, phishing, and spyware).
For most organizations, the key parts of CASL are the rules for CEMs, which apply to almost every electronic message (including email and short message service (“SMS”) messages) relating to a commercial activity. Subject to limited exceptions, CASL prohibits the sending of a CEM unless the recipient has given informed consent (express or implied in limited circumstances) to receive the CEM and the CEM complies with prescribed formalities and is not misleading.
CASL gives the Canadian Radio-television and Telecommunications Commission (“CRTC”) regulatory and enforcement authority regarding CEMs and other matters. In May 2012, the CRTC issued its Electronic Commerce Protection Regulations (the “CRTC Regulations”) specifying various requirements for compliance with CASL’s information disclosure and consent requirements. On October 10, 2012, the CRTC issued two information bulletins - Guidelines on the Interpretation of the Electronic Commerce Protection Regulations and Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation (collectively, the “Guidelines”) to provide guidance (including helpful examples and illustrations) regarding the interpretation and application of the CRTC Regulations and compliance with CASL’s information disclosure, consent and unsubscribe requirements.
Following is a summary of some of the key elements of the Guidelines as they relate to information disclosure and consent to receive CEMs.
- Identification of Sender: If a CEM is sent on behalf of multiple persons, such as affiliated organizations, then all of those persons must be identified. There is no obligation to identify intermediaries (not a person sending a CEM or a person on whose behalf a CEM is sent) who facilitate the distribution of a CEM but have no role in its content or choice of recipients.
- Mailing Address: The mailing address of a sender (which must be disclosed in a CEM) consists of the sender’s valid, current street (civic) address, postal box address, rural route address, or general delivery address, and must be valid for a minimum of 60 days after the CEM has been sent.
- Unsubscribe Mechanism: An unsubscribe mechanism must be “readily performed”, which means that it must be accessed “without difficulty or delay” and should be “simple, quick and easy” for a consumer to use. Examples of a “readily performed” unsubscribe mechanism are a link in an email or a SMS message that takes the user to a website where the user can unsubscribe from receiving CEMs from the sender, or the ability to respond to a SMS message with the word STOP” or “unsubscribe” that unsubscribes the person from receiving further CEMs from the sender.
- Separate Consents: A person seeking consent for activities regulated by CASL must seek a separate consent for each kind of activity, and a person from whom consent is sought must be able to consent to some regulated activities and refuse to consent to other activities. However, it is not necessary for consent to be sought separately for each instance of a regulated activity, as long as the initial consent request complies with the requirements of CASL.
- Consent Requests: Requests for consent to activities regulated by CASL must be clearly identified and must not be subsumed in, or bundled with, requests for other consents (e.g. consents to terms and conditions of use or sale). For example, consents to regulated activities may be obtained by using a separate tick-box or icon (which must be proactively ticked or clicked) to indicate consent to each kind of activity.
- Consent Obtained Orally: A person relying upon an oral consent may discharge the onus of demonstrating consent if the oral consent can be verified by an independent third party or by a complete and unedited audio recording of the oral consent retained by the person seeking consent or a client of the person seeking consent. A person may request and obtain oral consent in situations where information is collected over the phone (e.g. call centres), or a person may give consent when the person uses a product or service (e.g. point of sale purchases).
- Consent Obtained in Writing: Written consent includes both paper writing and electronic forms of writing. An electronic form of writing must permit the recorded information to be “subsequently verified”. For example, acceptable consent in writing includes checking a box on a web page to indicate consent (where a record of the date, time, purpose, and manner of that consent is stored in a database) and filling out a consent form at a point of purchase.
- Opt-In Toggling: Express consent to activities regulated by CASL can be obtained through opt-in consent mechanisms (such as checking a box or typing an email address into a designated field to indicate consent) because they enable a person to positively and explicitly express their consent.
- Opt-Out Toggling: Express consent to activities regulated by CASL cannot be obtained through opt-out consent mechanisms. Accordingly, opt-out toggling (the presentation of a consent form with a default toggling state that assumes consent) cannot be used as a means of obtaining express consent under CASL.
- No CEM to Request Consent: An unsolicited email, text message, or other form of CEM cannot be used to request express consent.
- Confirmation of Consent: After a person gives express consent, confirmation of receipt of the consent should be sent to the person.