Jan
08
2014

Canadian Anti-Spam Law update

CASL will come into force in phases starting July 1, 2014

The information below should not be considered legal advice. Please consult with appropriate legal counsel before relying upon the compliance information provided below.

As of December 2013 both regulators responsible for implementing Canada’s Anti-Spam Law have finalized their regulations. Industry Canada’s guidelines confirm all but one of the expected exemptions, provide needed clarifications to key requirements and delay implementation of the more controversial aspects of the law.

Over the past two years we have been updating you on CASL’s developments and efforts by industry groups to address unclear or onerous aspects of its proposed regulations. With Industry Canada confirming all but one expected exemptions and providing detailed guidance in its Regulatory Impact Analysis Statement, marketers should now have an easier time preparing.

Here is a summary of key points for Industry Canada’s final regulations:

i. CASL will be implemented in three phases:

      a. The majority of CASL comes into force July 1, 2014;

      b. The rules that apply to computer programs will come into force January 15, 2015; and

      c. The private right of action takes effect on July 1, 2017.

ii. Industry Canada has provided interpretive guidance on several issues under CASL, including:

      a. The definition of a “CEM”;

      b. The application of CASL to express consent obtained before CASL comes into force;

      c. The application of CASL to IP addresses and cookies; and

      d. The interaction between the unsubscribe requirement and implied consent.

iii. New exceptions have been added for:

      a. Closed platforms, which would appear to apply to platforms such as BlackBerry Messenger and social medial networks;

      b. Limited-access accounts, where organizations communicate directly with recipients (e.g., online banking);

      c. Messages targeted at foreign persons; and

      d. Fundraising by charities and political parties.

A surprising exclusion of the ‘Reasonable Knowledge’ exemption

In its draft regulations, Industry Canada sought to exempt foreign senders in instances where the sender could not reasonably know that the message would be received in Canada, particularly when the recipient does not typically access email within Canada or through Canadian systems.[1] However, in its final rulemaking the Department chose to nix this exemption as “unnecessary,” choosing instead to exempt messages routed through Canada into a foreign state. [2]

This omission may create challenges for marketers in situations where it’s not possible or practical to collect country of origin information.[3]  We expect further clarification on this concern from Canadian regulators in the coming months.

For detailed information please visit the Canadian Government’s informational website.
For summary information please see the following links:

If you would like to discuss CASL’s email-related issues, please email us at digitalprivacy@experian.com or reach out to us through your account teams.

 

[1] Archived http://www.gazette.gc.ca/rp-pr/p1/2013/2013-01-05/html/reg1-eng.html

[2] See Limited Exclusions section of Industry Canada’s Regulatory Risk Impact Assessment, http://fightspam.gc.ca/eic/site/030.nsf/eng/00271.html
[3] If a consumer uses a global inbox provider like Google a sender will be challenged to determine where the email is accessed. And since reverse IP geo-location records may be outdated or inaccurate, new technologies and customer self-identification processes may be needed.

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