Canada Day and CASL Day: be ready for both

What does July 1st, 2017 mean to you?  I suspect most people would say “Canada Day” or “long weekend.”  Whatever your answer may be I suspect it has nothing to do with Canada’s Anti-Spam Legislation (CASL).

A bit of background (which I’ve covered before in some of my previous posts): most provisions of CASL came into force on July 1, 2014. These are the provisions that say (in a nutshell) it is an offense to send a commercial electronic message (CEM) without consent, without identification information and without an unsubscribe link.  Anyone who does not comply with CASL may find themselves in trouble with the Canadian Radio-television and Telecommunications Commission (CRTC), who enforces the legislation through undertakings and fines.

Now, I have good and bad news relating to the July 1 date.  Let’s start with the good news.

There is a private right of action in CASL that says any individual who receives a CEM they think does not comply with CASL can bring an action against the sender in court.  This private right of action was supposed to come into force on July 1, 2017.  However, there hasn’t been a lot of enforcement of CASL since 2014, which would help Canadians understand what to do to avoid being the subject of a private action, and there is a lot of uncertainty surrounding the application of this private right of action. So CREA, along with other stakeholders, had urged the government to postpone implementation of the private right of action until after the three-year review of the legislation had been conducted. I am happy to report that our efforts were successful and the government has wisely decided to delay implementation.  That means you don’t need to worry about a private action under CASL this Canada Day.

Time for the bad news.  July 1, 2017 is the date that the transition period for implying consent in some circumstances comes to an end.

The transition period gave people three years to imply consent to send CEMs if they had done business with the recipient or received an inquiry from the recipient prior to July 1, 2014.  Starting July 1, 2017 senders of CEMs will only be able to imply consent based on an “existing business relationship” if they have done business with the recipient in the past two years (for example, if they had an agreement with them) or if they received an inquiry about their services from the recipient in the past six months.

There are also the other grounds for implied consent to send CEMs like following up on a referral, existing non-business relationship, conspicuous publication of an email address and disclosure of an email address by the recipient.  All these grounds for implied consent have been available to senders of CEMs since CASL came into force in 2014.

So what does this mean for you?  It does not mean you have to stop sending CEMs.  It means that you need to review your mailing lists.  If you have email addresses on your mailing list belonging to people you haven’t done business with since before July 1, 2014 then you might want to contact them to request express consent to continue sending CEMs.  You have until July 1 to request express consent in an email, which itself is a CEM.  After July 1, 2017, if you don’t have consent from those people, and if you can’t imply consent using any of the existing grounds under CASL, then you better remove them from your mailing list.

Okay, bad news over.  Go review your mailing lists and make sure you have consent so you can relax and enjoy your Canada Day!

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Allison McLure, former Legal Counsel, provided advice to CREA, boards, and associations on intellectual property law, DDF®, and Canada’s anti-spam legislation, as well as protected CREA’s trademarks and helped members comply with federal legislation and CREA’s trademark rules.

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