Canada's Anti-Spam Legislation: Overview and Consent Guidelines
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In a series of three webinars, Ryan Moss, Director of ISP and Client Relationships at TC Media, prepares marketers for Canada’s Anti-Spam Legislation (CASL). In the first webinar, he takes you through a high-level synopsis of CASL and its regulations, as well as a detailed view of consent: what it is, how you gain it from your audience, how you track it, etc. Listen to the webinar here: https://transcontinental-printing.webex.com/ec0701l/eventcenter/recording/recordAction.do?theAction=poprecord&AT=pb&internalRecordTicket=000000013fa55383f7bf4cc1671ebd197c07212b9cfeee820422aef5b2fa6d4352c8c092&isurlact=true&renewticket=0&recordID=68466697&apiname=lsr.php&needFilter=false&format=short&&SP=EC&rID=68466697&RCID=cf680e9c0cb54df5bd48bbed5dc2cd3a&siteurl=transcontinental-printing&actappname=ec0701l&actname=%2Feventcenter%2Fframe%2Fg.do&rnd=1271217793&entactname=%2FnbrRecordingURL.do&entappname=url0201l
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Canada's Anti-Spam Legislation: Overview and Consent Guidelines
- 1. 2014 1 CASL Canada’s Anti-Spam Law Webinar One - Consent 2014
- 2. 2014 Disclaimer 2014 The information included in this presentation may not reflect the views of Industry Canada, or the Canadian Radio-television and Telecommunications Commission. This information was created to provide a practical application to CASL. None of the information provided should be used as legal advice. For all legal matters, marketers are encouraged to speak with their own legal counsel .
- 3. 2014 Purpose 2014 “An Act to Promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act” -fightspam.gc.ca
- 4. 2014 Three Primary Rules 2014 Webinar 1: Consent Webinar 2: Identification & Unsubscribe Webinar 3: Last Minute Guide Today June 18May 15
- 5. 2014 5 Background Consent Grandfathering Consent Getting ready Agenda
- 7. 2014 7 Background MAY 2004 IC establishes task force on spam APRIL 2009 Bill 27, introduced in Parliament MAY 2010 Re-introduced as Fighting Internet & Wireless Spam Act (FISA) DECEMBER 2010 Receives Royal Assent MARCH 2012 CRTC presents final regulations DECEMBER 2013 IC presents final regulations JULY 2014 CASL Enforcement begins. Law is enforceable and compliance is required JULY 2017 PRA delayed until then
- 8. 2014 8 CASL Review LEGISLATION Against unsolicited electronic communication DETAILED RULES For commercial electronic messages sent from or accessed in Canada CONSENT Sender must attain some form of consent before sending CEM FINES Up to $10 million for corporations and $1 million for individuals ENFORCEMENT No minimum # to be caught
- 9. 2014 9 What Does CASL Cover? • Commercial electronic messages • Installation of computer programs • Altering transmission data 2014 9 Note: exemptions apply
- 10. 2014 10 CASL Exclusions • Personal and family relationship • B2B • Inquiry message • Response to enquiry • Legal message • Closed platforms • Foreign messages • Charity and political parties 2014 102014 10
- 12. 2014 12 Consent: Express vs Implied Express Implied Oral Written Non business relationship Published info Business relationship Disclosure 2014 12
- 13. 2014 13 Express Consent Overview • Express Consent: • Does not expire – Best practices still recommended • Recipient stated they would like to receive CEMs from sender. • Must make positive action to grant consent • Inaction will not grant express consent (pre-checked box) 2014 13
- 14. 2014 14 Express Consent Overview Express Consent Breakdown: • Oral • Call centre • Point of sale • Written • Web from / Preference centre • Subscription form • Point of sale • Ballet boxes 2014 14
- 15. 2014 15 Consent Overview • Implied Consent: • Consent expires in 24 months* • Expiry resets after every transaction • Mostly obtained by interaction or relationship • Renewed implied consent trumps opt out – Beware of best practices 2014 15 *Some forms of consent will have different expiry windows
- 16. 2014 16 Consent Overview Implied Consent: • Non-Business Relationship • Membership – (Not for profit) • Volunteer Work Performed • Published Information • Blog • Trade Journal • Business Relationship • Purchase • Written contract • Disclosure • Business card at a tradeshow 2014 16 *Some forms of consent will have different expiry windows
- 17. 2014 17 Special Consent - Forward to a Friend 2014 17
- 18. 2014 18 Consent Exemptions (Unsubscribe and ID Requirements still apply) • Requested quotes • Commercial transactions with recipient’s prior agreement • Warranty or safety information • Subscription or membership information • Employment or benefit plan information • Delivery of goods or services • Referrals (only 1 CEM allowed) 2014 18
- 20. 2014 20 Grandfathering Consent Implied Burden of ProofExpress Oral Written Business/non-business relationships Published info Disclosure
- 22. 2014 22 Getting Ready: Opt-in Page Red Earth 123 Toronto St Toronto, Ontario M4P-2Y3 www.redearth.com 2014 22
- 23. 2014 23 Identify/Audit • Identify your database. • Audit data storage • Re-permission strategy • Mail stream separation (Express/Implied) • Business logic around implied vs express consent • Audit partners • Purchased or fabricated lists • Review / modify your opt in procedure 2014 23
- 24. 2014 24 Grandfathering of Consent Expressed Implied Burden of proof 2014 24
- 25. 2014 25 Guidance from CRTC: Information Bulletins Forms of gaining oral consent Bundling of request for consent Confirmation of consent Pre- checked boxes 2014 25
- 26. 2014 26 Summary • Express vs Implied Consent • Special Consent • Grandfathering of Consent • Expiry of Consent • Exclusions of Consent / CASL
- 27. CONTACT Ryan Moss Director, ISP & Client Relationship TC Media 2014 ryan.moss@tc.tc 416-361-3522 X 238 ?
Notas del editor
- “An Act to Promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (CASL)” -fightspam.gc.ca
- “An Act to Promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act ” -fightspam.gc.ca
- Originally introduced into parliament in 2009. -December 2013, final regulations have been publiched by CRTC -July 2014 – Law is implmented Installation of computer programs delayed until July 2015 Private Right of Action delayed until July 2017
- Applies to Commercial Electronic Messages (CEM) and installation of computer programs At least one of the purposes of the message must be to encourage participation in commercial activity Requires customers to “opt-in” rather than “opt out” Consent obligations are more narrowly drafted CRTC is primarily responsible for enforcement Combination of public and private enforcement Extended liability Follow the money Vicarious liability Undertakings, due diligence Defining Sent: Message is sent once transmission has been initiated Does not matter whether – Message reaches destination – Electronic address exists
- Commercial Electronic Messages Computer systems located in Canada used to send, route, or access electronic messages (Email, Instant Messaging, and SMS) Installation of computer Programs CASL does not apply to Non commercial activity Voice, fax, auto recorded calls Broadcast messages including tweets and posts.
- exempt from CASL 1. Personal and family relationship Messages sent to individuals with who sender has personal or family relationship 2. Foreign messages –Messages accessed in a foreign state that is listed in the regulations and message conforms to the anti-spam law of the foreign state. 3. Charity and Political parties primary purpose is “raising funds for a charity” or “soliciting a contribution. 4. Response to inquiry message exclusion Messages that are sent in response to a request, inquiry, complaint etc 5. Legal message exclusion Messages sent to: satisfy a legal or judicial obligation 6. closed platforms Messages sent and received on an electronic messaging service if the information and unsubscribe mechanism are conspicuously published and readily available on the user interface like BBM, Whats App, many social sites. 2. B2B exclusion Messages that are sent by an employee of an organization: (i) to another employee of the organization and that concerns the activities of the organization, or (ii) to an employee of another organization if the organizations have a relationship and the message is relevant to the activities of the organization 3. Inquiry message exclusion Inquiry or application type messages sent by individual to person engaged in commercial activity, provided it is related to person’s commercial activity
- Express: Required information: Purpose Name of collector, and name of person on whose behalf consent is collected Contact Information Withdrawal statement User must take action to opt in – check box, email form ORAL Proof of record: CRTC Clarifies Third party: complete and unedited audio recording of the consent is retained by the person seeking consent Implied Consent: Expiry: 2 years after last transaction **open click not transaction Existing business relationship (membership of a club) Purchase or lease of a product, goods or service Existing non-business relationship Donation or Volunteer work, membership of a club etc Conspicuous publication – provided message is relevant to persons business(Unless publication is accompanied by a statement that the person does not wish to receive CEM) Business relationship – provided it is relevant to the persons business or official capacity. Disclosure – Provides business card at a trade show
- , the end-user must make a positive action to indicate that he or she provides consent.
- , the end-user must make a positive action to indicate that he or she provides consent.
- , the end-user must make a positive action to indicate that he or she provides consent.
- , the end-user must make a positive action to indicate that he or she provides consent.
- -Forward to Friend messages Marketers can send one CEM to “Friend” Unsub and Id still apply Referrer must have relationship with referee and with business sending Must include full name of ‘referrer’ and statement that CEM sent as result of referral Sender must ensure ‘referrer’ has relationship with both sender and ‘friend’ to whom message is sent Avoid incentivizing referrals Alternative may be to ask user to forward email using their own email client UI
- Exclusions (s6(6)) Providing a quote or estimate for the supply of a product, goods or a service if requested Transactional messages Provides warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased Provides notification of factual information about: the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the sender the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent
- Grandfathering of existing consent Express: PIPEDA compliant express before CASL considered CASL compliant even if your request did not contain the requisite identification and contact information Implied: Existing implied consent will be valid till 1 July 2017 Burden of proof : 1. Burden of proof to prove proper consent (both implied and express) resides with sender 2. Ability to prove some consent for every address on file Express : Date, time, Source, location, IP, Host, verbiage etc Implied : Date of purchase, billing information, channel, source, IP etc Identify situations where you cannot prove express or implied, and create action plan
- Opt in: Identify of consent collector, Identity of advertiser, physical address, (either phone number, webpage, or email) – ability to prove. Audit all opt in channels for prescribed information.
- CASL Identify opt in sources: Website, rental, POS, call center, acquired data, contest, offline, !email append, !purchase Mail streams: Email SMS Triggered messages Other Re permission mostly for implied or situations where no consent can be proven (this must be complete before July 2014) Wait until end of two (three initial) year term.
- Grandfathering of existing consent Express: PIPEDA compliant express before CASL considered CASL compliant even if your request did not contain the requisite identification and contact information Implied: Existing implied consent will be valid until 1 July 2017 Burden of proof: 1. Burden of proof to prove proper consent (both implied and express) resides with sender 2. Ability to prove some consent for every address on file Express : Date, time, Source, location, IP, Host, verbiage etc Implied : Date of purchase, billing information, channel, source, IP etc Identify situations where you cannot prove express or implied, and create action plan Record keeping – burden of proof is the responsibility of the sender and the data collector. Be sure » Opt-in IP address » Subscription date » Subscriber name » Subscription time » Subscription geo-location » Opt-in verbiage used (i.e., the call-to-action from the marketing campaign) » List source » Purchase information » Identity of consent collector » Why consent is being pursued (i.e., campaign and/marketing initiative details)
- Bundling of request for consent: Requests for consent must not be bundled with requests for consent to the general terms and conditions of use or sale of product. The requests for consent must be clearly identified to the user. For example, user must be able to grant consent to the terms and conditions of use or sale while refusing to grant consent for receiving CEMs. Oral or written consent: Consent may be obtained orally or in writing, or a combination of both. The CRTC clarifies that following forms are sufficient to gain oral consent: Where oral consent can be verified by an independent third party, or Where a complete and unedited audio recording of the consent is retained by the person seeking consent or a client of the person seeking consent. The CRTC clarifies that written consent includes both paper and electronic forms of writing. ESP ID in CEM The Commission considers that section 2 of the Regulations does not require that persons situated between the person sending the message and the person on whose behalf the message is sent need necessarily be identified. For example, persons so situated may facilitate the distribution of a CEM but have no role in its content or choice of the recipients. In that event, the Commission considers that they do not need to be identified. Pre-checked boxes The CRTC mandates that collecting express consent using pre-checked boxes is not acceptable because pre-checked boxes put the onus on the person whose consent is being sought to take action in order to indicate that he or she does not consent. 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. Confirmation of consent The CRTC notes that following receipt of express consent, confirmation of this receipt should be sent to the person whose consent was being sought.