CANADA S NEW ANTI-SPAM LEGISLATION FIVE SUGGESTIONS FOR COMPLIANCE

Transcription

1 CANADA S NEW ANTI-SPAM LEGISLATION FIVE SUGGESTIONS FOR COMPLIANCE July 25, 2013 Michael Fekete, Osler, Hoskin & Harcourt LLP Jason McLinton, Retail Council of Canada Brisette Lucas, Electro-Federation Canada

2 Overview 2 Introduction New rules Key rules for members Exemptions What s not likely to change What might change

3 Overview 3 Five things you can do to prepare Benefits & risks of acting now Examples (express consent, form of CEM, unsubscribe mechanism, etc.) Questions & contact information Annex A Further reading

4 Introduction 4 Key Terminology CASL Canada s Anti Spam Law IC Industry Canada (policy & regulations) CRTC Canadian Radio television & Telecommunications Commission (interpretation & enforcement) CEM Commercial electronic message Electronic address

5 Introduction 5 CASL received Royal Assent in 2010 but is not yet in force Awaiting finalization of regulations, expected fall 2013 Awaiting interpretive guidance CASL applies to all CEMs Fines for corporations of up to $10 million for each violation or up to $1 million compensation each day on which a contravention occurred

6 New rules 6 1. Express, opt-in & verifiable consent of the recipient required to send any CEM Can be written or verbal, but must be documented & verifiable Differs from opt-out consent and bundled consent many companies rely on now

7 New rules 7 2. All CASL-compliant CEMs must Identify who sent the CEM &/or on whose behalf it was sent Include information to readily contact the sender Include a clear & prominent unsubscribe mechanism

8 New rules 8 Partial Exemptions* Qualifying existing business & non-business relationships (some time requirements) Conspicuously published & relevant Response to complaint or inquiry Full Exemptions Qualifying personal & family relationships Inquiry or application *Identify, content and withdrawal of consent rules apply

9 New rules 9 Transitional exemptions 3 years grace for existing business & non-business relationships (no time requirements) Only applies if CEMs have already been sent

10 New rules 10 What s not likely to change Express, opt-in, verifiable consent CASL compliant CEM content

11 New rules 11 What might change Coalition is advocating for One year grace period after finalization of the IC Regulations for the entire regime Grandfathering pre-casl consents Expansion of certain exemptions Application of additional exemptions for active business relationships to active non-business relationships Personal & family relationships Computer programs Extraterritorial reach

12 New Interpretations 12 What might change Coalition is advocating for What will & will not constitute a CEM (e.g. otherwise non-commercial with a link to the company website) What will & will not constitute an electronic address What will & will not constitute installation of a computer program Affiliates & franchises

13 Five suggestions for compliance Designate a CASL point person 2. Audit current practices & systems 3. Identify current exemptions that may apply to your business Where none exist, consider obtaining CASL-compliant consents from current recipients

14 Five suggestions for compliance Update your process for requesting consent Consider updating your CEM format 5. Ensure you have adequate systems in place to maintain a record of each consent

15 Next steps 15 Once the coming into force regulations are finalized, RCC and EFC will immediately develop & deliver detailed education & implementation materials to assist with compliance for the benefit of our respective members.

16 The benefits & risks of acting now 16 Making changes to systems & processes now The benefits Time to adapt Re-requesting consent from current recipients electronically is not currently prohibited The risks Less certainty around some requirements may mean doing too much, too little or not quite the right thing

17 The benefits & risks of waiting 17 Making changes to systems & processes after the IC regulations are finalized The benefits Greater certainty of requirements & exemptions The risks Gambling on a grace period re-requesting consent from current recipients electronically will be prohibited once the Act is in force (unless an exemption applies)

18 18 Examples for acquiring consent Express, opt-in

19 19 How not to acquire consent X Pre-toggled

20 20 Examples for acquiring consent Express, opt-in

21 21 How not to acquire consent X Coupons, Draws or Surveys 40% Off!! Enter your below to redeem your free gift certificate for 40% off and to qualify for our grand prize draw of over 1,000 prizes. [SUBMIT]

22 22 How not to acquire consent X Follow-up s to coupons, etc. Please find your coupon for 40% off attached. You have also been entered in our grand prize draw for a chance at one of over 1,000 prizes!! I agree to receive Company Inc s newsletter. You can withdraw your consent at any time.

23 23 Examples for acquiring consent Separate

24 24 Examples for acquiring consent Separate

25 25 How not to acquire consent X Multiple I accept the terms and conditions. I agree to the installation of Company Inc s software. I accept to receive Company Inc s newsletter.

26 26 Examples for CEMs Sample This week s special: 40% off everything in the store! This message was sent to you by Agency ABC on behalf of XYZ Ltd. Please contact us at example@xyzltd or at <<mailing address>>. UNSUBSCRIBE If you do not wish to receive electronic messages from XYZ Ltd. in the future, please reply by e- mail with your name <<and other identifying information, such as an address>> to unsubscribe@xyzltd. Please be advised that this may restrict our ability to send messages to you in the future.

27 27 Examples for CEMs Unsubscribe mechanism

28 28 Questions?

29 Contact 29 Michael Fekete Co-chair, Technology Group Osler, Hoskin & Harcourt LLP

30 Contact 30 Jason McLinton Senior Director, Federal Government Relations Retail Council of Canada

31 Contact 31 Brisette Lucas Vice President, Government Relations & Policy and Chief Privacy Officer Electro-Federation Canada

32 Annex A Further reading 32 The Act, where most of the new requirements are listed ( The last version of the proposed regulations that define key terms & list exemptions, likely to change before they are finalized, expected this fall (

33 Annex A Further reading 33 CRTC s regulations & interpretation bulletins that clarify how they interpret, & intend to enforce, the new rules

34 Annex A Further reading 34 Osler microsite: