A review of Canada's new anti-spam legislation and ways to build a CASL compliant marketing strategy

1. Canada Anti-Spam Legislation:
Obligations and Opportunity
Presenters: Matthew Wansink
Chris Bakker

2. Agenda
 Introduction
 CASL – Overview
 CASL – Nuts and Bolts
 CASL – What is compliance?
 Building your business the CASL way

3. Introduction
 CASL – New Legislation
• Online July 1, 2014
 Information Overload
• Focus on practical considerations
» Be current
» CASL compliant business development

4. CASL - An Overview

5. It’s a Mouthful!
 CASL actually: An Act to promote the efficiency and
adaptability of the Canadian economy by regulating
certain activities that discourage reliance on
electronic means of carrying out commercial
activities, and to amend the Canadian Radio-
television and Telecommunications Commission Act,
the Competition Act, the Personal Information
Protection and Electronic Documents Act and the
Telecommunications Act.
 Better Yet: Canada Anti-Spam Legislation (CASL)

6. What Is it Really?
 Federal Legislation (i.e. Canada wide) designed to promote e-
commerce and discourage unsolicited electronic messaging as
a business and marketing tool
• Response to the proliferation of ‘spam’
• Takes a ‘prohibitive’ approach – not a ‘permissive’ one
• Deters most damaging and deceptive forms of spam

7. Why Now?
 Government, industry and the public wanted less unsolicited
electronic messages, whether in the form of e-mail, text
messages, social media or other means of telecommunication,
sent for commercial reasons
 Secondary attempt to reduce electronic threats to commerce,
including “phishing”, “pharming”, “malware” and “spyware”

8. What Does CASL Capture?
 For starters - Applies to Email Marketing, and all Social Media
Marketing for a commercial activity
• Barring specific exemptions, don’t assume that recipients want to
receive marketing materials – get consent!
 Very broad coverage
• Commercial Electronic Messages (CEMs)
• Malware / Spyware
• Automatic Information Collection

9. CEMs – What Are They?
 Commercial Electronic Messages - message sent by any means of
telecommunication, including a text, sound, voice or image message,
to an “electronic address”
• E-mail / instant messaging accounts
• Similar accounts
 Several classes of commercial messaging are exempted from CASL
• Phone conversations
• Messages sent via fax to telephone accounts
• Voice recordings sent to a telephone account

10. When is this Happening?
 Originally enacted in December 2010
 Main body of CASL comes online July 1, 2014
 Computer program rules (malware etc.) trigger on January 15,
2015
 On July 1, 2017, private individuals gain a right of action to
claim damages
• You can be sued as well as receive administrative penalties

11. Do I Really Need to Worry?
 CASL creates new offences, enforcement mechanisms and
penalties regulating unsolicited CEMs
 With CASL - some of the toughest legislation in the G-8
• Higher consent standards
• Covers more communication mediums
• Detailed content requirements
• Significant penalties for breach:
» $1,000,000 up to $10,0000,000 per instance
» violations may be separately assessed for each day of non-
compliance

12. CASL vs CAN – SPAM ACT
CASL CAN – SPAM ACT
Covers:
• Commercial electronic messages
• Potential liability of directors, officers
and agents of a corporation
• Expressly includes employers of
employees
• Any CEM that has, as its purpose,
or one of its purposes, a
commercial activity
Covers:
• Commercial electronic mail
messages (CEMM)
• Directors and officers not referenced
in the legislation
• Any CEMM that has as its primary
purpose a commercial intent

13. CASL – Nuts and Bolts

14. Is an Electronic Message Commercial?
 “Commercial” message: content that as one of its purposes
encourages participation in a commercial activity, regardless of
whether this is done with the expectation of profit
• Messages that offer to sell or advertise products
• Messages that promote a person or corporation, including personal
contact information
• Messages that aim to collect consumer or market information
• Messages aimed at obtaining consent to send further messages

15. Exemptions From CASL Do Exist
 CEM provides only factual info about a subscription,
membership or account
 CEM sent to an individual with whom the sender has a
“personal or family relationship”
 CEM sent to a person engaged in a commercial activity and
consists solely of an inquiry or application related to that
person’s commercial activity
 Any CEM sent in response to a request, inquiry, complaint or
otherwise solicited by the person receiving the CEM

16. Exemptions From CASL Do Exist (con’t)
 Employee to employee CEMs between companies that have a
business relationship and the CEMs relate to the company
receiving the message
 A CEM sent to satisfy or inform of a legal obligation, recall
notice or warranty information
 A one-time CEM sent to someone without consent, relying on a
referral from a 3rd party, as long as the sender discloses the
name of the person making the referral, and as long as the
person making the referral has a relationship with both the
sender and the receiver

17. If No Exemption – Then GET CONSENT!
 Two things to think about in order to comply with a Non-exempt
CEM:
• Need Consent from the receiver
» Express Consent; or
» Implied Consent
• CEM Content must contain
» Information Disclosure
» Unsubscribe Mechanism

18. Picture It . . .
CEMs
Non-Exempt
Consent
Do I have??
Express
Gold Standard
Oral
Keep Records
Written
Preferred
Implied
Limited Time
Business
Relationship
Is it really?
Non-Business
Relationship
Close enough?
Published Info
Relevant Info
Content
Is it there?
Disclosures
Required Info
Unsubscribe
Mechanism

19. Express Consent
 Go to form of consent
 Required disclosures to obtain consent
• Purpose of the request
• Name and contact information of party making the request for
consent
• Communication must include statement that consent can be
withdrawn at anytime (an unsubscribe option)

20. Implied Consent – Onus on the Sender
 Business Relationship
• Contractual Relationships
• Parties to leases, contracts for sale
• Supply or Services contracts
 Relationship Outside Business
• Shared volunteer associations
• Membership in clubs or groups
 Address of Recipient is Published
• Hasn’t previously withdrawn consent
• Information is relevant to the recipient’s duties

21. Content Requirements
 Disclosure of Information
• Who is sending the CEM
• The name of the agent used (if any)
• Sender’s contact information
 Unsubscribe Option
• Must advise receiver they can unsubscribe at anytime
• Receiver must be able to reply directly to the notice

22. Express Consent Means EXPRESS!

23. Express Consent – Be Careful

24. Unsubscribing Examples

25. CASL – What is Compliance?

26. Be Prepared!
 Main body of CASL comes online July 1, 2014
• 3 year transition period in some cases
 During the Transition Period implied consent continues
• For a period of 3 years after July 1, 2014
• Until express consent is obtained
• Consent is withdrawn

27. Staff Knowledge & Compliance Groups
 Internal buy-in is key
• E-mails to staff / required replies
• Senior and Mid-level management messaging
» Continual process, not a one time event
 Cross organizational compliance group
• Leaders across divisions
» Information Tech / sales & marketing / administrative
• CASL compliant database of CEMs
• ABR - Always Be Reminding

28. Go Data Mining
 My commercial electronic message business is . . .
• Review databases for CEM communications
• Required disclosure from sales & marketing staff
• Categorize and classify CEMs
» What categories and types are important
» Risky CEMs with little value add
» New types moving forward
• Make database easy and accessible

29. The CEM Database
 Is a category of CEM
 Are database management tools
• Capable of tracking unsubscribe notices
• Tracking time periods for implied consent
• Capable of recognizing upgrades in consent
• Allowed by Express
Consent
• Gold Standard
• Allowed by Exemption
• Allowed by Implied
Consent
• be careful

30. “The CASL 500”
 CASL not a one lap race
• Compliance today doesn’t mean no breach tomorrow
• Coordinate departmental communications and develop/implement
training plan
» Don’t forget new employees
» Refresher courses
» Targeted training
• CEM Database review benchmarks
» Monthly / quarterly
· Are management tools working

31. Build Your Business: The CASL Way

32. Show Me the Solution!
voicemail
or calls
events
and meetings
email
signature
online
presence

33. Show Them How

34. Hand to Hand
promote your email list and
encourage people to join from
your business card and other
printed material

35. Customer Touch
 Every interaction with a contact should be used as an
opportunity to join your business list
• Business Card drops, voicemail, sales/service invoices & quotes