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CCCA_V6No2_Dept-LegislativeUpdate-FIN_CCCA_V6No2_Dept-LegislativeUpdate 5/23/12 11:45 PM Page 16 Legislative update Canada’s anti-spam law: Filtering relationships CASL will likely come into force next year. Legal departments should start acting now. By Yves Faguy year on and Canada’s anti-spam Alaw (CASL) is not yet in force. Hailed and reviled as one of the world’s toughest laws of its kind, its implemen- tation has been put off to an unspeci- fied date — most likely sometime in 2013 — while the government finalizes regulations. Last year’s drafts drew con- siderable criticism from marketers, prompting regulators to consult stake- holders before revising the new rules. Though the Canadian Radio-television information through unauthorized access recipient). The same goes for existing non- and Telecommunications Commission to a computer system and making false and business relationships with certain organi- released its revised set of regulations in misleading representations in e-messages. zations, such as registered charities, political March, we have yet to hear from Industry Where CASL distinguishes itself from sim- parties and voluntary organizations. Canada. Even so, law departments should ilar laws in other jurisdictions is in its pro- There are also exemptions to the con- be planning carefully for the road ahead. hibition against sending unsolicited com- sent requirements. These apply to CEMs What is known is that CASL will sig- mercial e-messages (CEMs) by email, sent to individuals with whom the sender nificantly tighten rules for businesses instant messaging or to telephone accounts. has a personal or family relationship, intent on marketing to prospective cus- The law applies to CEMs sent by text, inquiries or applications related to some- tomers by electronic means. The new law sound, voice or image with a view to one’s commercial activity and any CEMs has teeth, as the penalties are severe — encouraging the participation in a com- that belong to a class defined by regula- maximums per breach are set at $1-mil- mercial activity, whether or not there is an tion. Also exempt are CEMs subject to lion for individuals and $10-million for expectation of profit. Senders must first the National Do Not Call List — i.e. voice corporations. CASL establishes new get consent by having recipients opt in to recordings and faxes sent to telephone enforcement powers for the CRTC, the receiving CEMs. This opt-in system accounts, and interactive two-way voice Competition Bureau and the Privacy stands in contrast to the opt-out approach communications between individuals. Commissioner. Officers and directors can favoured in the U.S. and most of the E.U. CASL also imposes a number of form be held liable for violations to which they There are circumstances in which CASL and content requirements. For starters, have given their assent. And the law even allows for implied consent on the part of every CEM must include information, as creates a private right of action, which recipients of CEMs, in particular anyone prescribed by the CRTC. CEMs that com- includes class actions. with whom the sender has an existing ply on this front need no prior consent if Many of CASL’s prohibitions raise little business relationship dating back no more they solely facilitate or confirm an already controversy, namely the bans against alter- than two years prior to sending the mes- agreed upon commercial transaction, ing transmission data, installing computer sage (or six months in the case of relation- deliver a product, good or service under programs and collecting e-addresses with- ships involving nothing more than an a prior transaction, provide a requested VEER.COM out expressed consent, collecting personal inquiry or application on the part of the quote, warranty / safety information, 16 CCCA Canadian Corporate Counsel Association SUMMER 2012