CASL Consent Requirements
On July 1, 2017 Canada’s Anti-Spam Legislation (“CASL”) came into force and became one of the strictest anti-spam regimes in the world. Section 66 of CASL provided for a three year transition period, which expired on July 1, 2017. This will have a great effect on the way businesses promote their products and services to prospective customers.
CASL Recap: What are the Requirements?
CASL imposed three main obligations on senders of marketing/promotional emails and texts (Commercial Electronic Messages or “CEMS”).
Senders of CEMS must:
1. Obtain express or implied consent of recipients before sending CEMs;
2. Provide the sender’s contact and other prescribed information within the CEM; and
3. Include an unsubscribe mechanism within the CEM, which requires no additional steps to be taken on the part of the recipient.
CASL is an opt in regime, meaning that recipients must perform positive action to provide their consent, even in cases where consent is implied.
Implied consent exists where a customer has, within the preceding two years:
(a) Purchased goods or services from an organization;
(b) Has signed a written contract with an organization;
(c) Has accepted a business opportunity; or
(d) Has made an inquiry regarding products or services of an organization.
Implied consent will now expire.
The transition period allowed businesses to send CEMs to those with whom they had prior to July 1, 2014, formed an existing business or non-business relationship throughout the transition period, and with whom they had historically exchanged CEMs.
As of July 1, 2017, the three year transition period will no longer apply to these CEMs.
If senders do not receive express consent from these contacts, senders will need to rely on a different category of implied consent under CASL and comply with their respective expiration periods.
For the purchase of a product or service or entering into a written contact, implied consent will expire after two years. For contacts who make an inquiry about a product or service, this implied consent is only valid for six months.
What does this mean for Businesses?
As of March 2015, the first decisions (and penalties) were announced and it is clear that the Canadian Radio-television and Telecommunications Commission (CRTC) is taking the enforcement of CASL very seriously … with early penalties to the tune of $1.1 Million Dollars.
Organizations need to review their contact lists and update all consent statuses to provide for the relevant expiration periods. Organizations should also take a close look at their CASL compliance strategies and processes and actively seek express consent from all contacts to whom they wish to send CEMs. In the absence of express consent, it will be vital that organizations track the dates on which implied consent is established as well as their respective expiration dates.
Remember, the onus of proving consent is on the sender of CEMs, so managing contact lists and keeping detailed records of consents/expirations are a must.
This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.