Canada’s Anti-Spam Legislation (CASL) is here – or almost – after much consultation, speculation and delay. As its working title suggests, CASL is intended to prevent unsolicited commercial electronic messages (CEMs). CASL will come into effect in stages, with the provisions relating to CEMs in force as of July 1, 2014. The Canadian Radio-television and Telecommunications Commission (CRTC) will be primarily responsible for the enforcement of CASL.
Unless an exemption applies, CASL requires the express consent of a recipient to the sending of electronic messages that encourage participation in a commercial activity. Unlike privacy laws such as the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Provincial health information specific privacy laws (including Ontario’s Personal Health Information Protection Act, 2004 or PHIPA), which only apply to personal/personal health information, CASL applies to CEMS regardless of whether they contain or are sent using personal information.
Given public funding for many (“insured”) health care services in Canada, there is a tendency not to consider health care services “commercial” activities. Does this thinking apply in regard to CASL? What could CASL mean for hospitals and other health care providers? Recognizing that there is uncertainty, this bulletin has been prepared to provide an overview of key provisions of CASL relating to CEMs, thoughts on how CASL may be applied to the health care sector, and suggestions about steps to be taken by health care providers prior to July 1, 2014.
What is a “commercial activity” under CASL? As in PIPEDA, the definition of commercial activity in CASL is not always simple to apply. It includes a transaction, act or conduct of a “commercial character”, regardless of whether making a profit is the intent or expected. There has been no guidance to date from the Government or CRTC on the activities of health care providers that will be considered commercial for the purposes of CASL, including whether a distinction will be made between insured and uninsured services.
What is a CEM? Although CASL defines the terms “electronic message” (a message sent by any means of telecommunication) and “commercial activity”, it is not always clear when a message will be deemed to encourage participation in a commercial activity. It is clear that the encouragement need not be direct or the sole purpose of the message, and that an electronic message requesting consent to send a CEM will itself be a CEM after July 1, 2014.
What kind of consent is required under CASL? Except where otherwise indicated, consent must be express within the meaning of CASL, which may differ from that in privacy laws. To obtain consent, in addition to explaining the purposes for which consent is being sought, CEMs must: (1) identify the sender (by mailing address and one of phone number, email address, or web address); (2) enable the recipient to readily contact the sender; and (3) provide an unsubscribe mechanism (collectively, the “Content Requirements”). The unsubscribe mechanism must enable the recipient to unsubscribe at no cost from all or a specified class of CEMs, using the same electronic means by which the CEM was sent, or where those means are not practicable, other electronic means. The unsubscribe mechanism must specify an electronic address or link to a web page accessible through a web browser to which the direction to unsubscribe may be sent. The unsubscribe mechanism must be prominent, the unsubscribe information valid for at least sixty days, and the unsubscribe direction acted on within ten business days.
What are some of the exemptions from the consentand Content Requirements in CASL? The consent and Content Requirements do not apply to CEMs communicated in two-way voice communications (such as telephone calls), in a voice message left on a telephone, or sent by facsimile transmission to a telephone account. These requirements do not apply to CEMs sent within an organization that relate to the activities of the organization, or to CEMs relating to the activities of the recipient where the sender and recipient have an existing relationship. (This exemption may apply to electronic communications between referring and consulting health care providers).
When is implied consent permitted? Express consent is not required where there is a specified existing relationship between sender and recipient. An existing business relationship includes a relationship arising from: a purchase of goods or a service in the two-years immediately preceding the sending of the CEM; a written contract if it has not expired within the two years immediately preceding the sending of the CEM; or an inquiry in respect of the purchase of a service made within the six-months immediately preceding the sending of the CEM. Accordingly, applying the business relationship exemption may require a determination about whether health care services were “purchased” by the patient or whether there is a contract between the patient and health care provider (Ontario’s agreement for primary care patient enrolment may be such a contract). Consent may also be implied where there is an existing non-business relationship between the sender and recipient, for example, arising from a donation or gift made to a registered charity, as defined in the Income Tax Act (hospital foundations may meet this criterion), within the two-years immediately preceding the sending of the CEM.
Caution should be exercised in that an exemption from one requirement (express consent) may not be an exemption from other requirements (the unsubscribe mechanism).
What are the penalties for non-compliance? The penalties are high: up to 1 million dollars for an individual and 10 million dollars for others, which could include health professional corporations. There is a due diligence defense, which makes it essential to be able to prove that there was consent to the receipt of a CEM or at least that it was reasonable to believe so. This is a marked departure from the implied consent on which health information is shared in many provinces. Health care providers may be uneasy about relying on implied consent to send electronic messages until it is known how the CRTC and the courts will apply CASL to the sector.
Is there a transition period? Where there is an existing business or non-business relationship and that relationship includes the communication of CEMs, organizations may imply consent to the sending of CEMs until the earlier of the date on which it is withdrawn and July 1, 2017 (when the 3 year transition period terminates). There is some disagreement about whether the Content Requirements, including the unsubscribe mechanism, must be complied with during the transition period when relying on a pre-existing relationship for implied consent.
What should health care providers be doing now? BLG approached the CRTC about holding a session on the application of CASL to the health care sector. While the CRTC is unable to commit to such a session at present, it has invited questions from the sector which it will consider responding to in future communication materials. Information on how to submit questions is provided below.
- How Can Health Care Providers Prepare For CASL?
- Assign responsibility for the review/implementation of CASL within your organization.
- Inventory the circumstances in which your organization sends electronic messages (communications by email or text messaging services, for example), including who sends them and for what purposes.
- Identify your organization’s policies and protocols, if any, regarding electronic communications, including those relating to consent.
- Determine whether any of the electronic messages your organization sends could be characterized as CEMs (see section 3 below) and if so, determine whether your protocols are consistent with the requirements in CASL.
If your organization sends or may send CEMs:
- If your organization wishes to rely on exemptions from the express consent requirement, ensure that your databases are current and contain the information required to accurately segment contacts according to their relationship to the organization and/or the scope of any consent they have provided.
- Determine how information relevant to CASL will be maintained by your organization (dates, and nature and scope of consent – particularly where an individual may opt to receive some but not all CEMs).
- Obtain consent to send CEMs prior to July 1, 2014 and establish a protocol for obtaining consent through non-electronic means in the future.
- Determine how to communicate information about CASL/train staff on your organization’s CASL related policies and protocols.
- Determine how your organization will audit its compliance with CASL.
- How Are Electronic Messages Used By Health Care Providers?Outside of fundraising, electronic messages may be sent by health care providers for purposes that include: giving notice of a clinical trial, research or other studies, or pilot projects for which the patient may be eligible; compliance programs; invitations to educational or other events; requests to contact the organization to book an appointment or have a diagnostic test; advising of new products (medications or medical devices) that may be appropriate for a patient; notifying patients of drug and medical device recalls; advising of services (peer reviews, services offered under a block fee arrangement, “wellness” programs); consultations among health care professionals; and communications between health care providers about patients, patient services or records.
- How Likely Is It That Any Of The Above Will Be Considered A CEM?
In conversation, representatives of the CRTC and Industry Canada confirmed the view that an activity that is not a “commercial activity” under PIPEDA may be a “commercial activity” under CASL.
Notice regarding clinical trials, studies and pilots which further the interests of researchers, institutions, sponsors and society in general could constitute a CEM as well as offers of professional services (particularly but not exclusively for services that are not medically necessary or for which patients or insurers otherwise pay). Communications advising of new products or services, including compliance programs, and services provided under a block fee arrangement may also be considered CEMs.
Where there is any doubt as to whether an electronic message is “commercial in nature”, the prudent approach is to obtain consent under CASL.
- What Are Other Exceptions To The Consent And Content Requirements That May Apply In The Health Care Sector?There is no requirement to obtain consent where a CEM provides:
- product recall information or safety or security information about a product, goods or services that the recipient uses or has used;
- factual information about the on-going use of a product, goods or services (a medication or medical device for example) offered under a membership or similar relationship
- updates or upgrades that the recipient is entitled to receive under the terms of a previously concluded transaction.
- The is no requirement to obtain consent or to meet the Content Requirements in relation to:
- communications sent in response to a request or inquiry, for example responding to a patient request for an appointment or prescription renewal; and
- communications sent pursuant to a legal obligation.
- How Does Consent Differ Under CASL And Existing Privacy Laws?
Consent obtained in compliance with health information privacy legislation will not necessarily satisfy CASL’s requirements. Obtaining consent under privacy laws generally requires notice of the purposes for which personal information will be used and disclosed and the categories of recipients, and notice that consent may be withheld or withdrawn. Obtaining consent under CASL involves ensuring that the sender of CEMs can be easily identified and contacted and that the recipient can easily put an end to receiving CEMs. While express consent may be required for marketing activities under personal health information and other privacy laws, some activities outside of marketing activities may also require express consent under CASL.
- Does Using A VPN Provided By A Government Agency, Such As Ehealth Ontario’s Onemail, Assure Compliance With CASL?
No. Using a VPN may satisfy requirements to protect information, but not consent or other requirements.