CASL Consent: Unsubscribe Rules, Exemptions & Compliance Checklist

As an individual, you have more power in your hands concerning unsolicited Commercial Electronic Messages (CEM). As a spammer you better think of your strategy, someone is watching.

Maybe it was passed and effected without your knowledge, but that does not mean it does not apply to you. The Canadian Anti-Spam Law (CASL) was passed on 1st July 2014. So many laws are passed to protect individuals against spamming but this one is different.

In this article, we will dissect the CASL and see how it applies to individuals, spammers, managers, and businesses who market through emails and other types of messages.

To start with,

What exactly is covered by the CASL?

Since this is an anti-spam law, it is formulated to cover everything sent as an electronic message with the exemption that it has to be commercial. That is, sent by an individual or business with the aim of getting the recipient to buy, attend or take part in a commercial activity. The Canadian Anti-Spam Law describes this messages as Commercial Electronic Message (CEM).

This new anti-spam legislation applies when messages are sent from business to business, business to individual, individual to individual, and individual to business.

For a message to be considered commercial it must be;

>Sent as an email, instant message, or any other electronic address including on social media platforms.

>In an electronic format and

>Commercially engaging the recipient. This includes positively pulling them towards promotional materials, business, people, services etc.

If as a business or individual you are sending messages with the above characteristics, then you may be looking at a fine of between $1 million for individuals and $10 million for businesses.

For your messages not to be considered as spam in the CASL, you have to get consent from the recipient. The consent can either be express or implied.

Express consent.

For this type of consent to be effective, the CEM receiver must clearly and expressly agree to receive your commercial messages. When requesting the receiver to allow you to be sending them CEM, your request MUST display;

-A sample description of how the CEM will be like.

-Your physical address, email address, telephone number, website address your full names (business or individual), and any other information that can be used to contact you.

-Your request to the intended CEM receiver must clearly describe your intentions in obtaining their express consent.

-Most importantly you must assure the intended receiver that free to unsubscribe from your CEMs at will.

Implied consent.

This type of consent does not require so much explaining as in the case of express consent. For consent to be ‘assumed’ or ‘implied’ the CEM recipient has, at any one time,

-Made a donation at a charity or any other registered organization, or they may have attended seminars or meetings organized by you or they have volunteered at your charity or organization.

-The CEM recipient has displayed their email address prominently and the recipient did not include an expression that they don’t accept CEMs.

-In the last 2 years, the recipient has interacted with you either through product/service purchase, has been a member of your organization or you had an abiding contract.

Whether express or implied, who is responsible for ensuring consent?

Unfortunately, the CEM sender is the one responsible for consent adherence. To simplify the process of tracking the consent, the sender must have a detailed copy of the consent. This must include the date and time of the consent which must all be in writing including the procedure used to get the recipient’s consent. When a consent is obtained orally, an audio/video recording should be available.

Who is responsible for the enforcing of the CASL?

Three bodies are involved, the Canada Radio-television Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner of Canada.

The CRTC will deal with CEM that violate the new anti-spam law, unsolicited installations of programs in personal computers and directing users on a website or any other internet resource without the users’ consent.

The work of the Competition Bureau will be to ensure that businesses in Canada correctly phrase their CEM. This will ensure no misleading information is provided in a CEM.

OPCC will deal with illegal access of computer systems with the aim of extracting personal information and collecting quantitative amounts of electronic addresses, eg. Emails with an aim of mass spamming or emailing.

But, not all CEMs require consent. A CEM will not require consent if the recipient;

>Is a family member.

>Is receiving the CEM as a call to contribute to a registered political organization etc.

>The CEM is being sent outside Canada

>The CEM address product/service features which the recipient had purchased. This may be by communicating the security/safety information of the product or warranty details.

>Is receiving the message after the sender was referred to them. In this case, the details of the referring party must be included alongside the CEM.

How do business and individuals comply with the CASL?

-The mechanisms they put in place e.g databases must be able to track all consents (express and implied) and at the same time make it possible to opt out of receiving the CEM communications.

-If it’s a business sending the CEMs, its employees must be educated about the new CASL. A business may be liable if their employee sends a CEM that violates the CASL.

-Prior to sending an unsolicited message, determine if you require consent from the recipient.

-Provide for a reviewed policy statement which captures the requirements of the Canadian Anti-Spam Law.

Finally,

Any violation of the CASL has to be reported through www.fightspam.gc.ca. From 1st July 2017, individuals were allowed to report spam messages to the concerned authorities.

The new law affects almost every individual and business. Therefore its study and the possible effect on business should be identified beforehand.

The fine imposed for violating the CASL will be on a case by case basis.

Isaac (Ishaq Mustaqim)

Media & Local Business Growth Specialist

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