Jun 12, 2014
Canada's new anti-spam legislation is set to begin to come into force on July 1, 2014. Also known as CASL, this legislation governs the sending of commercial electronic messages (CEMs) and the installation of computer software.
The provisions relating to commercial electronic messages affect Canadian magazines, and, if your magazine develops an app for use on a smartphone and/or tablet, the provisions relating to the installation of computer software also affect you. The legislation as it pertains to the sending of CEMs comes into force on July 1, 2014, whereas the portion pertaining to the installation of computer software comes into force on January 1, 2015.
The CRTC is the federal agency responsible for ensuring that Canadian businesses and other entities comply with the new anti-spam legislation.
In collaboration with legal counsel, Magazines Canada has developed magazine-specific tools to help members plan and implement their compliance programs with respect to CASL, including a how-to guide and a webinar. MagNet, Canada's magazine conference, recently held over June 3–6, included a session with expert panelists dedicated to answering attendees’ questions regarding CASL.
Magazines Canada is part of a coalition of business and technology groups that is engaging with both the CRTC and Industry Minister James Moore, through Industry Canada, to bring forward, wherever possible, the numerous lingering questions and uncertainties that remain over complying with this new legislation.
What follows is a sample of some of the outstanding areas of concern regarding the CASL legislation.
Questions Regarding CASL
1. Is This a Commercial Electronic Message?
Example: As currently worded, the CASL legislation appears to classify many important service messages that are often sent in electronic form as CEMs. Examples include messages about employee benefit plans, product recalls, and warranty or security information. It will be important to clarify whether or not these types of electronic messages are deemed to have a commercial purpose.
Example: When sending a CEM in the form of a text message to a recipient’s smart phone, because of the relatively small size of the smart phone’s screen and the length of the message, it is often necessary to cut the full message down into two or three shorter messages. If this is the case, is it necessary to include the CASL-required identification and unsubscribe functions at the end of each part of the truncated message, or is it sufficient to include them at the actual end of the message?
Example: Are customer satisfaction surveys considered to be CEMs?
2. Obtaining Consent
Example: When signing up a customer over the phone, some service providers proceed to send the terms of service document to the customer by email and/or regular mail. However, the customer does not sign and send the terms of service document back to the service provider. Will this meet CASL’s compliance requirements or will customers need to actively/physically sign the document and send it back to demonstrate that consent has been obtained?
3. Private Right of Action
Example: The Private Right of Action (PRA) provision, where an individual can bring suit against an organization s/he believes has violated the provisions of CASL, does not come into force until July 1, 2017. While the intent is that the PRA provision will only apply to the conduct of CEM senders going forward from July 1, 2017, a plain reading of the CASL legislation as it is currently worded suggests that the PRA might in fact apply to the conduct of CEM senders retroactively, as of July 1, 2014.
The CRTC has released a video presentation of the CASL information sessions that they hosted across Canada over the past six months. The presentation provides further information on CASL enforcement, regulations and guidance.
As you continue implementing your CASL compliance programs, it is important for Magazines Canada members to know that the association, in concert with its coalition colleagues, continues to seek answers to these questions from the CRTC and/or from Industry Canada, and that the questions that remain touch virtually every economic and business sector affected by CASL. Canadian magazines are far from alone in seeking this necessary clarity. Magazines Canada will inform its members as soon as updates become available. Visit magazinescanada.ca/government_relations/spam.