CRTC FAQ on CASL

December 18th, 2013 by Barry Sookman Leave a reply »

The CRTC just released a new FAQ on CASL. It contains little that is new and repeats much of what it had been previously said including in its two Guidelines. The focus of the FAQ are the anti-spam prohibitions. Some highlights are.

Disclaimer

These FAQs have been prepared by Commission staff in order to provide general information with respect to commonly posed questions about Canada’s Anti-Spam Legislation (CASL). This material is not to be considered legal advice, nor does it reflect a decision, policy or interpretation of CASL and/or its accompanying regulations, by the Commission, Office of the Privacy Commissioner, the Competition Bureau or, Industry Canada. Please note that this information may be subject to change.

Comment: Caveat emptor.

How do I tell if my message is a CEM?

If a message fits within the meaning of “commercial electronic message”, all requirements concerning consent, the prescribed information requirements, and an unsubscribe mechanism must be complied with, unless a particular exception or exclusion applies. Please see subsections 1(1), 1(2) and 1(3) of CASL for the definitions of commercial activity and commercial electronic message. Read CASL and its regulations.

A key question to ask yourself in order to determine if your message constitutes a CEM is whether it would be reasonable to conclude that the purpose or one of the purposes of the message is to encourage participation in a commercial activity. Do not forget to examine:

the content of the message,

the hyperlinks in the message to website content or other database, and

contact information contained in the message.

Whether a message constitutes a CEM and/or a whether a particular exception or exclusion applies must be determined on a case-by-case basis in light of the specific circumstances of a given situation.

Comment: Industry Canada attempted to make a distinction between types of messages in the RIAS. The CRTC basically repeats the language of CASL confirming that organizations have to make case by case decisions about each communication.

With respect to the sending of commercial electronic messages, does express consent obtained prior to CASL coming into force, continue to be valid after CASL comes into force even though the request for consent did not contain all the required information?

If you obtained valid express consent prior to CASL coming into force, you will be able to continue to rely on that express consent after CASL comes into force, even if your request did not contain the requisite identification and contact information. However, all CEMs sent after CASL comes into force must contain the requisite information, meet all form requirements and contain an unsubscribe mechanism. If requesting express consent after CASL comes into force you must meet all form requirements including setting out the identification information. Please keep in mind that the legislation requires you to prove that you have obtained such express consent.

Comment: This implicitly confirms that according to the CRTC not all existing PIPIDA consents are being grandfathered.

Can pre-checked boxes, unchecked opt-out boxes, or a similar mechanism be used as a means to obtain express consent under CASL?

Mechanisms such as an unchecked opt-out box, or a pre-checked opt-in box, cannot be used to obtain express consent. Express consent must be obtained through an opt-in mechanism; that is, the end-user must make a positive action to indicate that he or she provides consent. Therefore, a default toggling state that assumes consent on the part of the end-user cannot be used as a means of obtaining express consent under CASL. Further, silence or inaction on the part of the end-user cannot be construed as providing express consent. For more information please see Compliance and Enforcement Information Bulletin CRTC 2012-549.

Comment: This repeats what the Commission said in its Toggling Guideline. In this regard, the Commission’s interpretation of express consent is not consistent with the common law which does not require a person to manifest consent twice to assent to a document.

How can I include identification and contact information as well as an unsubscribe mechanism in a 140 character text message?

If it is not practicable for you to include identification, contact, and unsubscribe information directly in your message, as with text messages, the information may be posted on a web page on the World Wide Web that is readily accessible and at no cost to the recipient. The link to the web page must be clearly and prominently set out in the message.

Comment: The Commission did not explain how this can be done where messages are sent to devices that enable text messaging but do not have a data plan.

For more information about CASL, see, CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline.

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