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Considerations as CASL Private Right of Action Approaches

February 23, 2017 - Marketing, Social Media, Web -

* We’d like to thank our friend, Richard B. Newman of Hinch Newman LLP, for contributing another fantastic blog post and sharing with our audience!

“SPAM mail”, what does that even mean? Spam mail is defined as irrelevant or unsuitable information sent via email to a large amount of recipients. Most of us have had emails pile up in our Junk Folders. Generally speaking, these emails tend to search for personal information or offer information that was never requested and often inappropriate.

The government of Canada has issued a quick reference guide to help individuals flag what could be seen as SPAM.

As modern day technology advances, Canadian laws with it need to adapt. As such, the Canadian Anti-Spam Law came into force (CASL) in 2014, subjecting these unsolicited emails to laws and regulations. Did you know however, that as of July 1st, 2017 individuals and organizations will have the right to institute a private right of action against those that violate the CASL provisions?

Are you informed on your rights and obligations? Do you regularly send out email marketing? Do you know what is and isn’t permitted when sending newsletters and other forms of Commercial Electronic Messages (CEM)?

Our friend and expert, from Hinch Newman LLP and attorney in internet law, online marketing compliance, telemarketing compliance and regulatory defense, Richard B. Newman, speaks to this subject in the following post.

spam

Considerations as CASL Private Right of Action  Approaches

The Canadian Anti-Spam Law came into force in July 2014.  As of July 1, 2017, individuals and organizations will be entitled to institute a private right of action against those that violate its provisions.

In short, the CASL prohibits the sending of a Commercial Electronic Message without express consent.  CEMs must contain certain sender identification information and an unsubscribe mechanism.

Consent exceptions include, but are not limited to, CEMs sent internally within an organization, between organizations in a relationship (where the message concerns the recipient), in response to an inquiry from the recipient, to satisfy a legal right or obligation, from Canada and accessed in another “listed” country (and the message complies with the “listed” country’s spam laws), by a sender who has a “family” or “personal” relationship with the recipient, by or on behalf of a charity soliciting donations, and/or by or on behalf of a political party soliciting donations.

CASL applies, but consent is not required where a CEM only provides a quote or estimate, facilitates/ completes/confirms an existing transaction, provides a warranty or safety information, provides factual information about products or services, and/or delivers products/updates/upgrades that the recipient is entitled to receive.

CASL applies, but consent from the recipient is implied where the recipient and sender have an “existing business relationship,” the recipient and the sender have an “existing non-business relationship,” and/or the recipient has conspicuously published or provided his or her email address.

Compliance mechanisms by which to enforce CASL include the issuance of Administrative Monetary Penalties against individuals and organizations that have violated CASL’s provisions.

Given the severe financial penalties for violating CASL, companies that do business in Canada are well-advised to design and implement appropriate compliance protocols.  For example, companies that send emails to recipients in Canada must implement compliance programs that adhere to CASL’s complicated set of consent exceptions and numerous guidelines.

CASL enforcement actions and investigations by the Canadian Radio-Television and Telecommunications Commission are on the rise.  Given the impending opportunity for private rights of action, organizations should re-familiarize themselves with CASL’s provisions, as well as key considerations, such as, without limitation:

  • Ensuring that internal compliance programs include, without limitation, written policies, record keeping protocols and adequate staff training.
  • Assessing your organization’s electronic communications to determine if they qualify as CEMs.
  • Considering whether any consent exceptions apply, including whether a relationship exists such that consent may be implied.
  • If there is no consent exception, considering whether your organization has designed and implemented an appropriate procedure to capture express consent, including providing: (i) the purpose of requesting consent; (ii) the name of the entity requesting consent; (iii) a mailing address plus phone number, email, or web address; (iv) a statement that consent can be withdrawn; and (v) an affirmative opt-in mechanism.
  • Implementing procedures designed to test the efficacy of unsubscribe mechanisms.
  • Ensuring that CEMs include a functioning unsubscribe mechanism and that unsubscribe requests are timely honored.
  • Ensuring that mailing lists do not include recipients that have either unsubscribed or no longer qualify for an exception.
  • Analyzing third-party marketing contracts to ensure proper allocation of responsibility for complying with CASL.
  • Diligently scrubbing mailing lists.

Contact an experienced FTC defense lawyer and state AG investigation attorney with any questions regarding the similarities and differences between U.S. anti-SPAM legislation and CASL.  Given the impending private right of action, this matter should be of particular interest to corporate counsel interested in designing and implementing written compliance policies and protocols.

Richard B. Newman is an Internet law, online marketing compliance, telemarketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing and defending clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, complex commercial litigation defense, SPAM law compliance and litigation defense, intellectual property transactional and litigation matters, advising clients on promotional marketing programs, and negotiating and drafting legal

richardbnewman

Richard B. Newman is an Internet law, online marketing compliance, telemarketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing and defending clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, complex commercial litigation defense, SPAM law compliance and litigation defense, intellectual property transactional and litigation matters, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

HINCH NEWMAN LLP. ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result.