Last week, I attended a meeting hosted by the Information Technology Association of Canada (ITAC) where representatives from the CRTC spoke about the enforcement of Canada’s upcoming anti-spam law (also known as CASL). In earlier posts which was about Anti-Spam and Email Marketing, I talked about the guidelines that the CRTC recently released on how to comply with CASL. The meeting focused on those guidelines and had the following take-aways:
- Generally speaking, the guidelines are meant to indicate best practices and are not prescriptive. There may be other ways to comply, other than the examples given in the Guidelines
- When a “commercial electronic message” (the technical term for spam in CASL, or CEM for short) is sent by a parent company on behalf of more than one affiliate, the CEM needs to identify (and consent must be given to) each of the affiliates
- Senders cannot assume consent extends to other lines of business the customer is not using – e.g., customer gets internet service from X, X cannot send CEMs about TV or phone.
- Onus is on sender to prove consent – CRTC emphasized importance of keeping records, including the date/time consent was given.
- the Guidelines had a sample “unsubscribe” mechanism, where the user was given the option to unsubscribe from “all” messages or only “promotional” messages. There was debate about whether senders must give the option to unsubscribe from all messages, and whether “all” includes purely transactional messages, such as reminders about payment deadlines or usage updates (e.g., you have used 75% of your data plan). CRTC took the position that customers should be able to unsubscribe from all CEMs, which include notices about usage and messages that “indirectly” solicit. This is an important issue that we will continue to monitor.
- Jurisdiction – CRTC took the position that all CEMs originating in Canada are subject to CASL, regardless of where the recipient is. If the jurisdiction where the recipient is has its own anti-spam law, senders may have to comply with both CASL and the foreign law.
It looks like the legal community could benefit from the CRTC clarifying certain aspects of CASL. In particular, there seems to be some uncertainty about how broadly the unsubscribe option must apply. This is an important point that businesses will need to understand in order to get ready for CASL’s coming into force next year.