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The Privacy Advisor | Are You Ready for Express-Consent CASL? ‘Cause It’s Coming Related reading: Ireland's DPC issues 345M euro TikTok children's privacy fine




Though the government has promised to help coach proactively through the transition, organizations would be wise to start taking steps toward compliance with Canada’s anti-spam legislation (CASL), which becomes effective July 1.

CASL will affect any individual, business or organization that uses commercial electronic messages (CEMs) or transmits data in electronic messages. In short, it requires senders to obtain express consent for commercial electronic messages. There are also provisions on installing spyware and malware without express consent and collecting electronic addresses via computer programs without consent.

The act aims to bolster Canada’s economy by boosting consumer confidence in businesses’ use of CEMs, according to the law’s verbage. It amends three acts currently on the books, including, not insignificantly, the Personal Information Protection and Electronic Documents Act (PIPEDA). CASL differs from PIPEDA in that it adopts an opt-in regime. That is, for any CEM, express consent is required for a lawful transmission to have occurred. While there are scenarios under which implied consent is allowed under CASL, those scenarios are much more defined under CASL than they had been under PIPEDA.

Implied consent would still be permitted, for example, for a CEM sent to a customer with whom there’s an existing relationship to convey information related to a specific good or service. Say a customer had purchased a suitcase from Target under warranty, and Target wanted to send a note to say that the warranty was almost up but the customer could purchase an extended warranty if desired. The existing relationship Target had with the customer would allow it to contact the customer again without needing express consent for up to two years after the purchase. If express consent can’t be achieved within two years, the business must stop sending the customer messages.

If it works in the way government hopes it will, we’re going to find consumers with greater control over how their information is used. And I think it has the potential to really restore trust.

Prof. Michael Geist on CASL’s pending implementation

Where this could get sticky is for companies that already have a thick rolodex, says Tamir Israel of the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic. And because “commercial electronic message” is defined broadly under the law—that is, anything that encourages participation in commercial activity, regardless if profit is involved—there is a wide-ranging number of entities that will be affected by the law’s implementation.

“What it comes down to is list management,” Israel says. “People will have to keep track of things like, ‘For this e-mail address, how did it get on to our list? Through a transaction? Did we get express consent?’”

Industry Canada’s Michel Cimpaye, however, says the government has been in close contact with the corporate community throughout the legislative process and understands a learning curve is involved here.

The good news?

“Most businesses are already employing CASL-compliant best practices in their online marketing efforts that involve similar measures,” he says. “For those businesses that are already compliant with PIPEDA, the additional compliance requirements in CASL are incremental.”

And because a transition period was anticipated, the government built provisions into the bill to ease the pain; any existing business relationship entered into before CASL goes into effect will be recognized for three years after July 1—meaning implied consent will suffice until July 1, 2017.

The law will be regulated by the Canadian Radio and Telecommunications Commission (CRTC)—Canada’s broadcast regulator. The allowance of civil suits after its implementation will come into effect in 2017.

Israel adds, “the remedy regime built in to CASL is also compliance-focused. Where a violation is found, the CRTC has the option of entering into undertakings as an alternative to issuing violations. Moreover, the penalties themselves are ‘to promote compliance with this act and not to punish.’”

University of Ottawa Prof. Michael Geist says while there’s been no shortage of critics of the legislation, the law has been a long time coming.

“If it works in the way government hopes it will, we’re going to find consumers with greater control over how their information is used,” he says. “And I think it has the potential to really restore trust.”

As with any piece of controversial legislation, Geist says, everybody comes away wishing certain things were different.

“But perhaps that’s a signal of a genuine compromise,” he says. “I think those from the privacy side looked at the legislation, especially as government passed it, and thought, ‘This is going to be tougher,’ while some of the business community thought it needed further changes.”

What Do I Do To Prepare?

Shaun Brown, a partner at nNovation, has three tips for brands preparing to comply with CASL and says compliance can actually be a fantastic housekeeping effort resulting in more efficient marketing in general.

First, take inventory of existing databases of contacts and the various channels through which your organization is communicating.

“This has been a learning experience for many of my clients and has even turned into an opportunity to improve on the effectiveness of marketing programs, in addition to becoming compliant,” Brown says. “As a specific example, I have been able to help develop signup pages and preference pages that are both compliant and more effective in terms of adding and retaining subscribers. I urge organizations to try to view preparing for CASL as a learning opportunity that offers benefits beyond strictly compliance.”

To do this, it’s most effective if marketing staff are involved as opposed to only compliance and legal staff, Brown says: “This aids in identifying and capitalizing on opportunities to improve on marketing effectiveness and ensures there is buy-in from the marketing department from the outset.”

Lastly, Brown says, “don’t be afraid to press customers and/or service providers on how they are preparing for CASL, as their shortcomings could affect you. Ensure that you have agreements in place that, to the extent reasonably possible, protect you from their mistakes.”

For more on complying with the new provisions, including how to determine what a “commercial electronic message” is, how to prove consent has been obtained and developing methods to obtain it, see the government’s FAQ page.


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