Page 49 - CCCA 226419 Magazine Fall 2014

{ legal uPdate } casl at work By Kirsten Thompson Was it all for nothing? Canada’s anti-spam legislation, or Casl, ■ All documents and data pertaining to i mean. the mad rush towards the july 1, 2014, deadline, the policies and procedures for scrubbing email contact lists, including docu- thousands (in many cases, hundreds of thousands) of dollars mentation on how the unsubscribe spent on compliance, the escalating salvo of shrill e-entreaties mechanism works; ■ Documents (including payment infor- to please, please, please provide consent. all the hype, all the mation and contracts or agreements) fuss and….nothing. Was it Y2K all over again? with third parties who have sent CEMs on behalf your organization; ■ Audited fnancial statements (unaudit- complaints ing it, as the disclosure requirements are ed if audited statements are not avail- From the perspective of organizations, burdensome (see below) and in some cases able); and the eerie calm may indeed be reminiscent unrelated to the issue. Organizations will ■ Information on restrictions of use of of those frst few seconds past midnight be left guessing as to what “the issue” might assets, credit facilities, amounts due to on January 1, 2000. For the Canadian Ra- be, as it appears no complaint is included owners or shareholders and amounts dio-television and Telecommunications with the Notice. In other words, organiza- due from owners or shareholders. Commission (CRTC), however, the regu- tions will not be able to easily challenge the Organizations receiving a Notice will very latory wheels have been furiously churn- disclosure on the basis of being unreason- likely fnd these requirements burden- ing for months. Unlike Y2K, the frst few able because they won’t know to what the some, particularly since organizations are hours after July 1 saw the CRTC online Notice relates. For instance, a Notice that given only 15 days to produce these mate- spam reporting go live—with over 1,000 requires an organization to produce the rials. For an organization which sends out, complaints in the frst two days and over customer records that underlie a claim of say, a few thousand promotional messages 50,000 by the end of July. an “existing business relationship” may per month, this has the potential to tie up Will all of these complaints be investi- be reasonable in some circumstances, but marketing and IT resources for days. gated? While the CRTC has acknowledged wholly unreasonable if the complaint that that is unlikely, it has promised all com- triggered the Notice was about a confusing Best practices plaints will be reviewed but only investi- unsubscribe function. Organizations concerned about their gated if appropriate. CASL compliance practices and their abil- scope of disclosure ity to respond in a timely way to an in- Investigations For every email address which appears on vestigation should test their organization The frst step appears in your mailbox in the list mentioned above, the Notice de- using the checklist above. While this is by the form of a Notice to Produce, issued mands documentation on: no means comprehensive, it does provide pursuant to section 17 of CASL. The No- ■ The method the email address was ob- a basic understanding of what to expect. tice “requires you to produce the docu- tained; It will allow organizations to get ahead of ments below,” and a long list is itemised. ■ The kind of consent obtained and the any investigation and fll any gaps in their The boilerplate also advises that “if you nature of the relationship which sup- CASL compliance program. ❚ intend to contest this notice, you must ports such consent; and submit an application for review” in ac- ■ The date on which that consent was cordance with conditions set out in the obtained. Kirsten Thompson, Counsel in McCarthy Tétrault’s National Notice. The conditions only permit you to In addition, the Notice demands the pro- Technology Group in Toronto, contest the Notice where the requirement duction of: has a general commercial prac- to produce is unreasonable in the circum- ■ All documents and data pertaining to tice with a focus on providing stances or would disclose privileged infor- policies and procedures for obtaining, privacy, data security, informa- mation, or to review conditions imposed recording and tracking consent for tion governance and e-discovery to prevent disclosure. sending of CEMs; advice to clients in a wide variety of industries. Organizations receiving such a Notice ■ All templates used for CEMs sent dur- may want to think seriously about contest- ing the relevant period; Canadian Corporate Counsel assoCiation | CCCa-aCCje.org 49