CASL Checklist because the Law still applies

Canada’s Minister of Innovation, Science and Economic Development, the Honourable Navdeep Bains announced last week that the Private Right of Action (PRA) provisions of CASL originally scheduled to come into force on July 1, 2017 have been suspended indefinitely.

What does this mean?

Even though everyday people will not be able to bring a private right of action in court against individuals and organizations with whom they allege have violated CASL, the Law still applies and you can still be served by the Canadian Enforcement Agencies (below):

  • Canadian Radio-television and Telecommunications Commission (CRTC)
  • Competition Bureau
  • Office of the Privacy Commissioner of Canada

So what is changing?

When CASL first came on to the scene in July of 2014, it caused a lot of confusion and sent marketers scrambling to update their list of contacts. In order to give businesses time to adjust, CASL had a 3-year “transition period” built in that marketers could rely on to continue sending CEMs to their existing client base.

The 3 year transition period will expire on July 1st, 2017.

Under CASL, if someone buys something from you they enter into a business relationship which gives you “implied” consent to send email to that person for a period of 2 years (unless they opt out).

Instead of asking everyone to get rid of contacts they’ve had on their list for years, the transition period allowed marketers to send to contacts even if the business relationship was older than 2 years.

As of July 1st, 2017 these people must now be removed from your list, unless they have purchased something else from you in the last 2 years; or you have obtained full permission (aka: “Express” consent). Up until July 1st, 2017, the transitional period is still in effect so you can take this opportunity to send them an email to ask for “full” permission, or have a link to a form on your website where they can sign up again.

There are 2 levels of Consent as defined by CASL: “Express” & “Implied”

Express” consent is when the individual takes some affirmative action to “opt-in” to your list willingly, like checking an empty box on your sign up form.

Implied” consent is when a business relationship exists (such as a purchase), but the recipient was added to your list without any affirmative action.

Checklist of what you need to do before July 1st, 2017  :

  • Audit of all online communications (Newsletters, Transactional, SMS/MMS, Social Media) to see what needs to comply with CASL
  • Review your contact list carefully and identify any gaps in list data: Consent date, consent level, current status, etc. If you cannot prove consent – remove them.
  • Reconfirm “implied” consent subscribers that you have a business relationship with older than 2 years and remove anyone that does not reconfirm before July 1st, 2017
  • Conduct regular audits of your compliance and any third parties sending email on your behalf
  • Prepare your defence in the event you do get served with a Notice of Violation*

* Section 33(1) of the law states that:  “a person must not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.”  so it is even more important now for organizations to get ready and prove they have taken all reasonable steps to avoid violating CASL. This may include policy changes, training of employees, compliance and risk assessments.

Are you in the U.S.A ?

CASL supersedes CAN-SPAM, so if you are a U.S. business emailing folks in Canada, the law applies to you.

We are not lawyers; the above checklist does not constitute legal advice. CASL can be very confusing and reviewing and updating lists can be an arduous task. If you are at all unclear about CASL, we encourage you to seek legal advice – choose a lawyer that respects and understands CASL.

Lastly, Canada turns 150 years old on July 1st, 2017 so you can join us in wishing Canada a Happy Birthday!

 

To find out how to reconfirm your list click here:
http://kb.cakemail.com/en/deliverability/how.do.i.reconfirm.a.list/

To read our Guide to Understanding CASL click here:
http://cakemail.com/casl

For more information on CASL, please visit the CRTC website:
http://fightspam.gc.ca

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Author Kevin Huxham

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