THE AGE OF CONSENT: Canada s Opt-In Anti-Spam Law Draws Near SEMINAR APRIL 4, 2013

Transcription

1 THE AGE OF CONSENT: Canada s Opt-In Anti-Spam Law Draws Near SEMINAR APRIL 4, 2013 MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY

2 STIKEMAN ELLIOTT S COMMUNICATIONS LAW BLOG Canada s Online Resource for Communications Law Developments and Analysis Featuring information and resources on relevant legal, legislative and policy developments including: Radio and television broadcasting Cable and satellite distribution New media and internet content Broadcasting and internet copyright issues Wireline telecommunications Wireless telecommunications and spectrum licensing Convergence issues Competition in broadcasting and telecommunications markets Transfers of ownership and Canadian ownership requirements Unsolicited telecommunications, Do Not Call List and anti-spam requirements Fully searchable with archived materials, indexed by topic Subscribe for immediate updates via , RSS or Twitter Visit Stikeman Elliott s other blogs at MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY

3 THE AGE OF CONSENT: Canada s Opt-In Anti-Spam Law Draws Near AGENDA 7:30 am Breakfast and Registration APRIL 4, :00 am Welcome and Introduction Adrian Lang, Moderator Partner, Litigation Group Stikeman Elliott, Toronto 8:05 am The Age of Consent: Canada s Opt-In Anti-Spam Law Draws Near David Elder Counsel, Head of Communications Group Stikeman Elliott, Ottawa 8:45 am Question and Answer Period 9:00 am Closing Remarks

4 THE AGE OF CONSENT: Canada s Opt-In Anti-Spam Law Draws Near CONTENTS APRIL 4, 2013 SPEAKERS Adrian Lang, Partner, Litigation Group Stikeman Elliott, Toronto David Elder, Counsel, Head of Communications Group Stikeman Elliott, Ottawa PRESENTATION SLIDES The Age of Consent: Canada s New Anti-Spam Law Draws Near RESOURCES Articles Many business concerns remain following revisions to anti-spam regulations David Elder, CanadianCommunicationLaw.com, January 7, 2013 CRTC guidance on check-boxes for e-marketing likely to tick off business community, David Elder, CanadianCommunicationLaw.com, October 12, 2012 CRTC clarifies anti-spam regulations: consent can include electronic forms David Elder, CanadianCommunicationLaw.com, March 30, 2012 CRTC tweaks anti-spam regulations, David Elder, CanadianCommunicationLaw.com, March 12, 2012 Legislation and Regulations Canada s Anti-Spam Legislation (unofficial title), S.C. 2010, c Electronic Commerce Protection Regulations, Canada Gazette, Part I, Vol. 147 No. 1 (Jan. 5, 2013), at 29 Electronic Commerce Protection Regulations (CRTC), SOR/ Electronic Commerce Protection Regulations (CRTC), Telecom Regulatory Policy CRTC Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC), Compliance and Enforcement Information Bulletin CRTC Guidelines on the use of toggling as a means of obtaining express consent under Canada s anti-spam legislation, Compliance and Enforcement Information Bulletin CRTC FIRM PROFILE An overview of Stikeman Elliott and our Communications Group

5 THE AGE OF CONSENT: Canada s Opt-In Anti-Spam Law Draws Near PROFILES OF TODAY S SPEAKERS APRIL 4, 2013 Adrian Lang Partner, Stikeman Elliott David Elder Counsel, Stikeman Elliott

6 Adrian C. Lang 5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) Fax: (416) Law Practice Adrian Lang is a partner with the Litigation department in the Toronto office of Stikeman Elliott. Her practice concentrates on corporate commercial litigation, securities litigation and class action litigation. Ms. Lang has worked on matters involving issues relating to the Ontario and Canada Business Corporations Acts as well as the Ontario Securities Act, and has appeared before all levels of Court. Ms. Lang was recognized by Lexpert in 2008 as one of the Leading Lawyers under 40 and in 2004 as up and coming in class actions. She is also listed in several publications, including: > The 2013 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada for Litigation Corporate Commercial > Legal Media Group s 2013 Benchmark Canada, the Guide to Canada s Leading Litigation Firms and Attorneys (Second Edition) as a pre-eminent litigation practitioner in Ontario > The 2012 Lexpert Guide to the Leading US/Canada Cross-border Litigation Lawyers in Canada in the areas of Class Actions and Litigation Corporate Commercial. > The 2012 Canadian Legal Lexpert Directory as a leading practitioner in the area of Litigation Corporate Commercial, Litigation Securities and Litigation Class Actions > The Best Lawyers in Canada in the area of corporate and commercial litigation ( ) and class actions litigation ( ) > LawDay s Leading Lawyers: Class Action - Defense ( ) > The 2009 Lexpert Guide to the Leading US/Canada Cross-Border Litigation Lawyers in Canada as a "Litigator to Watch" Professional Activities Ms. Lang is on the Advisory Board of the Class Action Defences Quarterly, a LexisNexis publication. She is a member of the Canadian Bar Association and the Simplified Rules Committee of the Superior Court of Justice. She also sits on the Board of The Advocates Society, is Chair of the Standing committee on Advocacy and Practice and sits on the Advisory Board of Young Women In Law. Ms. Lang is an adjunct professor at Osgoode Hall Law School, teaching class actions, and a guest lecturer at Osgoode s Intensive Trial Advocacy Course. She has spoken at various conferences on securities litigation and class action litigation and acts as editor of the firm s class actions law blog (CanadianClassActionsLaw.com) and Litigation Update. PROFILE

7 Publications and Speaking Engagements Ms. Lang has written and spoken on various topics including practice management issues, class actions and corporate securities issues. Following is a select list of Ms. Lang s recent publications and presentations: Corporate/Securities Issues > Co-author, Securities Litigation Update: Recent Developments and Trends in Ontario, presented at Securities Law Update 2012, The Law Society of Upper Canada CPD program (co-chair) (November 2012). > Speaker, Injunctions, The Commercial List Update: What You Need to Know, Canadian Bar Association Professional Development program (November 2012). > Co-author, When Disclosure Means Litigation: The conflict between good corporate governance and securities class actions, Class Action Defence Quarterly, LexisNexis (March 2011). > Co-author, Recent Developments in Directors' and Officers' Liability", Lexpert/American Lawyer Media's 2010 Guide to the Leading 500 Lawyers in Canada. (December 2010). Class Actions > Panellist, Securities Class Action at Osgoode 10 th National Symposium on Class Actions, and a member of the organizing committee (April 2013). > Co-author, Can the Genie Go Back Into the Bottle? Waiver of Tort Revisited, Class Action Defence Quarterly, LexisNexis (March 2013). > Co-author, Where to Sue: The Supreme Court of Canada provides guidance on the common-law approach to the assumption of jurisdiction over foreign defendants, Lexpert 2012 Guide to the Leading US/Canada Cross-Border Litigation Lawyers in Canada (December 2012). > Co-author, Aggregate Damages Revisited: Ontario Court of Appeal clarifies the law, Class Action Defence Quarterly, LexisNexis (December 2012). > Co-author, Canada chapter, International Comparative Legal Guide to: Class and Group Actions 2013, Global Legal Group (October 2012). > Speaker, Securities Class Actions, 9 th National Symposium on Class Actions, and coauthored paper, Recent Developments in Secondary Market Securities Class Actions: Implications of the Leave Test and Beyond, Osgoode Professional Development (April 2012). Practice Management > Mentor, Take the High Road Home, The Advocates Society Mentoring Dinner (April 2013). > Speaker, Opening Words of Advice for the Young Female Lawyer, The Commons Institute s Practice Management and the Female Lawyer (February 2013). > Speaker, "Exercising Professionalism and Civility", The Advocates Society Education Program (December 2012). PROFILE

8 > Speaker, Corporate Governance Considerations in Shareholders Disputes, Osgoode Hall Law School s Managing, Mediating and Litigating Shareholder Disputes (December 2012). > Speaker, Leading your case, examinations in chief and opening statements, The Advocates Society s Education Program (December 2012). > Panellist, Examining/Cross-Examining the Financial Expert A Practical Demonstration and Debriefing Discussion, Osgoode Hall Law School s 9 th Annual Conference: Evidence Law for the Civil Litigator (October 2012). > Speaker, Practice Management and the Female Lawyer, The Commons Institute (October 2012). > Speaker, Developing and Maintaining a Client Base as a Civil Litigator, LSUC (March 2012). > Speaker, Breakfast Near Tiffany s 2: The Key to Success, Gems for Women Advocates, The Advocates Society (March 2012). Background Ms. Lang served on the Toronto Advisory Committee for the Civil Justice Reform Project led by Justice Coulter Osborne ( ) and sat on the board of directors of the YWCA Toronto ( ). She is co-chair of the Laurier Club, Ontario, past chair of the Young Advocates Committee of the Advocates Society, sits on the board for The Canadian Stage Company and is on the Gala Committee of the Writers Trust of Canada Gala. She is also a participant in the Enbridge Ride to Conquer Cancer. Education University of Ottawa (LL.B. summa cum laude 1995), University of Manitoba (BA 1991). Bar Admission Ontario, PROFILE

9 David Elder Suite 1600, 50 O Connor Street, Ottawa, Canada K1P 6L2 Direct: (613) Fax: (613) delder@stikeman.com Law Practice David Elder practises communications, competition and privacy law in the Ottawa office, where he is Head of the Communications Group and a member of the Competition and Foreign Investment, Privacy & Data Protection, Government Relations and Regulatory and Public Policy practice groups. He also serves as the firm s Chief Privacy Officer. He has over 20 years experience gained in private practice, government and corporate settings. David was formerly Vice President, Regulatory Law with Bell Canada, where he also served as Bell Privacy Ombudsman, the equivalent of Chief Privacy Officer. He has also served as Legal Counsel to the CRTC. David has provided legal and strategic advice with respect to a wide range of broadcasting and telecommunications proceedings, including those relating to licensing, policy matters and competitive disputes. In various written, oral, expedited and dispute resolution proceedings he has advocated on behalf of clients before the CRTC, Industry Canada, the Federal Court of Appeal, the Privacy Commissioner of Canada and several Parliamentary Committees and working groups. He serves a broad range of clients in the communications industry including broadcasters, broadcasting distributors, Internet content providers, software-as-a-service providers, property developers, government departments and agencies, industry associations and telecommunications service providers employing Internet, wired, wireless and satellite technologies. With respect to privacy matters, David provides privacy compliance advice to a wide range of Canadian and international businesses, including technology companies, on-line service providers, manufacturers, wholesalers and retailers, conducting both "bricks and mortar" and online activities. He also provides advice with respect to managing data breaches and navigating privacy issues arising in M&A transactions. David serves as Special Digital Privacy Counsel to the Canadian Marketing Association, in which role he advocates and advises on a range of electronic privacy issues, including spam regulation. David is editor of CanadianCommunicationsLaw.com, Stikeman Elliott s blog on legal and policy developments relating to communications. He is also a Research Contributor to the Privacy Interviews with Experts Series published by Nymity News, an international provider of privacy information, compliance and accountability solutions. He has been recognized in The Best Lawyers in Canada 2013 for his Communications Law expertise, and in Chambers Global s The World s Leading Lawyers for Business 2013 as a recommended lawyer in Telecommunications & Broadcasting, where he is noted as being a great lawyer who is very knowledgeable, very accessible and a real asset for the firm. PROFILE

10 Professional Activities David is Chair of the National Entertainment, Media & Communications Law Section of the Canadian Bar Association and a member of the Steering Committee for the biennial Law Society of Upper Canada / Canadian Bar Association Communications Law and Policy Conference. He is also an active member of the International Committee of the Antitrust Law Section of the American Bar Association. He has been an active member of the Information Technology Association of Canada and the Canadian Wireless Telecommunications Association and is the former chair of the Lawful Access Committee of the Canadian Association of Internet Providers. Community David is involved in a number of community and charitable endeavours, including the March of Dimes and Plan Canada. He is a Board Member of the Sir Ernest MacMillan Memorial Foundation, a charitable organization that provides financial support to young musicians in the pursuit of their advanced education and career development. He has also been a fundraising leader for the Bell Walk for Kids Help Phone, winning the Inspiration Award for the highest fundraising of an Ottawa-based team in both 2007 and Selected Presentations and Publications David speaks and writes regularly on communications and privacy matters, most recently including: Speaking > A Guide to Canada s New Anti-Spam Law (CASL), Osgoode Professional Development, Toronto, April > The New Canada Anti-Spam Law (CASL): Industry Canada has Spoken In-house Counsel Should Listen, co-hosted by Canadian Corporate Counsel Association and Canadian Bar Association, Toronto, March > Managing High Risk Compliance Areas, Osgoode Certificate in Regulatory Compliance and Legal Risk Management for Financial Institutions, Toronto, March > In Conversation with David Elder, Understanding Privacy in 2013: The New Rules of Engagement, Marketing Magazine Conference, Toronto, February > Privacy in the Digital Age: Implications for Society and the Judiciary, National Judicial Institute s Nova Scotia All Courts Education Seminar, Halifax, November > Friends, Cookies and Commerce: Interest-Based and Social Media Marketing, PIPA Conference 2012: Privacy on the Go, Calgary, November > Cross Border Data Flows: Multi National Cloud Environments, 3 rd Annual Privacy, Access and Security Congress, Reboot Communications, Ottawa, October > Privacy Key Issue When is Data Anonymous?, panel discussion, 3 rd Annual Access to Information and Privacy Law Symposium, Canadian Bar Association, Ottawa, September > Understanding Bill C-30, ipolitics webcast discussion, March PROFILE

11 > Private Sector Privacy: A Matter of Principles, International Association of Privacy Professionals Knowledgenet, Toronto, February > Interest Based Advertising: Privacy, Priorities and Proportionality, Luncheon Keynote Address to 13 th Annual Privacy & Security Conference: Keeping Pace with the Digital Revolution, Victoria, B.C., February > Behavioural Geo Targeting and On-Line Advertising: Every Move you Make, panel discussion, 13 th Annual Privacy & Security Conference: Keeping Pace with the Digital Revolution, Victoria, B.C., February > Interest Based Advertising: Privacy, Priorities and Proportionality, keynote speaker and Behavioural Geo Targeting and On-Line Advertising, panel discussion, 13 th Annual Privacy and Security Conference: Keeping Pace with the Digital Revolution, Reboot Communications, Victoria, February Publications > "Opt-in: Canada's new legislation to eliminate spam," E-Commerce Law & Policy, December > "Commissioner warns websites to fix web leakage, " The Lawyers Weekly, November 16, > Leon s decision rearranges the furniture of Canadian privacy law, Privacy Pages, August > CRTC tweaks anti-spam regulations, Internet and E-Commerce Law in Canada, May > Canada chapter, Getting the Deal Through: Telecoms and Media 2012, Law Business Research Ltd., April 2012 > Lawful access bill drawing more fire, The Lawyers Weekly, April 13, Media Mentions David is frequently interviewed by the media and asked to comment on communications, competition, and privacy law matters. He has been quoted in various publications, including: > Cole prompts vigorous debate on privacy at work, Law Times, 21 January > Will the digital cloud lead to a deluge of privacy class actions? Financial Post, 28 November > Lawyers critical of spam guidance: CRTC information raises ire of business community, Law Times, 29 October > Supreme Court Bolsters Employee Privacy, Lexpert, October > Businesses jittery as new law to take effect next year, Law Times, 4 June > The Supreme Court of Canada s recent decision to refuse leave to appeal in Globalive Wireless Management Corp. v. Public Mobile Inc., The Globe and Mail, Report on Business, Law Page, May 9, > Globalive casts long shadow, Lexpert, March > Government changes rules to attract new entrants, Law Times, 23 April PROFILE

12 > CRTC publishes final anti-spam regulations, Financial Post, 16 March > Expiring terms present opportunity to reduce commission size, The Wire Report, 17 January > Commission s executive exchange program flatlines, for now, The Wire Report, 6 January Education University of Ottawa (LL.B. 1989); York University (B.A. (Hons.) English Lit./Mass Com. 1985). Background Immediately prior to joining Stikeman Elliott, David had his own law practice in Ottawa, specializing in communications and privacy law. Bar Admission Ontario, PROFILE

13 THE AGE OF CONSENT: Canada s Opt-In Anti-Spam Law Draws Near PRESENTATION SLIDES APRIL 4, 2013

14 The Age of Consent: Canada s Opt-In Anti-Spam Law Draws Near Canada s Anti-Spam Legislation CASL SLIDE 1 1

15 CASL in a Nutshell Commercial Electronic Messages Prohibits sending commercial electronic messages without express consent Some exceptions Installation of Computer Programs Prohibits the installation of a computer program without express consent Some exceptions Alteration/Rerouting Prohibits the alteration of transmission data or rerouting of messages without express consent SLIDE 2 Related Amendments Competition Act PIPEDA Telecom Act CRTC Act New offenses re false & misleading online reps Sender ID, subject line, URL Removes exceptions to consent for address harvesting & collection of personal information through hacking Clarifies CRTC authority under Telecom Act limited to telemarketing Establishes CRTC as enforcement agency for CASL SLIDE 3 2

16 Enforcement AMPs for violations Up to $ 1 M individual, $ 10 M corporate Undertakings Public shaming Registration with court enforced as contempt Injunctions, Restraining Orders Offences Private right of action Preservation demand Notice to produce Search warrant SLIDE 4 CASL Regime Components and Status Royal Assent on Dec. 15, 2010 Not yet in force CRTC Regulations final, not in force Revised IC Regulations 5 Jan 2013 Legislation Regulations Spam Reporting Centre CRTC Staffing CRTC confirmed to run SRC New personnel in 2011 investigation & enforcement, legal SLIDE 5 3

17 Installation of Computer Programs CASL SLIDE 6 Installation of Computer Program Must not install/cause to be installed a computer program on other s computer system Installed program must not cause electronic message to be sent from computer system Unless: Express consent of owner/authorized user Provide electronic address for remove/disable for 1 year Provide no-cost assistance re remove/disable request Acting pursuant to court order SLIDE 7 4

18 Deemed Consent - Programs Express consent for installation of a program is assumed if the program is: A cookie html code Java script Operating system Executable only through use of another program installed with consent As per Regs TSP program to prevent illegal activities that present imminent risk to network security TSP program to update or upgrade network AND conduct suggests reasonable to believe they consented (?) SLIDE 8 Express Consent Light Must set out clearly and simply : Purpose or purposes for which consent sought Prescribed info identifying sender/person on whose behalf consent is sought Other prescribed info* For computer programs, also clear general description of function and purpose Also transitional grandfathered consent SLIDE 9 5

19 Express Consent Enhanced For programs that perform certain unexpected functions, enhanced disclosure required: Interfering with owner/user control of computer Collection of personal info stored on computer Changing/interfering with settings, preferences or commands without knowledge of owner/user Changing/interfering with data stored on computer so as to interfere with lawful access to or use of data Unauthorized communication with other computer, device Capability of unknown/unauthorized 3 rd party activation SLIDE 10 Express Consent Enhanced Must set out clearly and prominently, and separately and apart from the licence agreement: Description of the program s material elements that perform the unexpected functions, including Their nature and purpose Their reasonably foreseeable impact on the operation of the computer system Bring those elements to the attention of the person from whom consent is being sought in the prescribed manner: Separately from any other information provided in a request for consent The person seeking consent must obtain an acknowledgement in writing* from the user that they understand and agree that the program performs the unexpected functions AND no pre-ticked boxes SLIDE 11 6

20 Unsolicited Electronic Messages CASL SLIDE 12 Core Anti-Spam Provision It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless: 1. One of the statutory exceptions applies, or 2. The sender has the express or implied consent of the recipient and the message is in the prescribed form SLIDE 13 7

21 Q1: Is the message A COMMERCIAL ELECTRONIC MESSAGE? SLIDE 14 Commercial Electronic Message An electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that (a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land; (b) offers to provide a business, investment or gaming opportunity; (c) advertises or promotes anything referred to in paragraph (a) or (b); or (d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs a) to (c), or who intends to do so. SLIDE 15 8

22 Q2: Does the message fit within a STATUTORY EXEMPTION? SLIDE 16 Exceptions from Consent and Form of Message Requirements Part 1 Sent by individual to individual with whom have a personal/family relationship personal relationship = direct, voluntary 2-way communications, reasonable to conclude personal, no indication don t want to receive CEMs family relationship = blood, marriage, common-law, adoption Sent to business, message consists solely of a related inquiry/application or that business s response Internal CEMs concerning affairs of that organization External B2B CEMs, where is a business relationship, message concerns affairs of organization or receipient employee, re., contractor or franchisee s role, duties or functions SLIDE 17 9

23 Exceptions from Consent and Form of Message Requirements Part 2 Incidentally accessed in Canada: Sent from outside of Canada Relating to a product, good, service or organization outside of Canada Access using a computer systems in Canada Sender did not know and could not reasonably be expected to know message would be accessed from Canada Sent to: Satisfy a legal or juridical obligation Provide notice of or enforce a right, court order, judgment or tariff Enforce a right arising under federal, provincial, municipal or foreign law Interactive voice, fax calls or voice recordings sent to telephone account as provided in regulations SLIDE 18 Exceptions from Consent Requirement Only Part 1 Provides a quote or estimate, where requested by recipient Facilitates, completes or confirms a commercial transaction to which recipient previously agreed Provides warranty, recall, safety or security information about a product/good/service that recipient purchased Provides notification of factual info re ongoing subscription or membership Provides info to employee re employment, benefits Delivers a product, good or service entitled to receive SLIDE 19 10

24 Exceptions from Consent Requirement Only Part 2 Communicates for purpose set out in regulations First CEM sent following a referral by someone with An existing business or non-business relationship, as defined A personal or family relationship (but not as defined?) With both sender and recipient Where CEM discloses full name of referrer and states the message was sent as a result of the referral SLIDE 20 Q3: Does the sender have IMPLIED CONSENT? SLIDE 21 11

25 Implied consent 1. Existing business relationship: Purchase, sale or barter of goods or services within previous 2 years Acceptance of business opportunity within previous 2 years Written contract, in force, or expired within previous 2 years 2. Conspicuous publication of electronic address 3. Disclosure by recipient of business card info Where no caveat re unsolicited messages, and message relevant to function, role or duties SLIDE 22 Existing Business Relationship a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons; b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons; c) The bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those persons within the period referred to in that paragraph; SLIDE 23 12

26 Existing Business Relationship d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or e) an inquiry or application, within the six-month period immediately before the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c). SLIDE 24 If no applicable exception or implied consent, sender must have EXPRESS CONSENT SLIDE 25 13

27 Request for Express Consent Must set out clearly and simply : Purpose or purposes for which consent sought Prescribed info identifying sender/person on whose behalf sent Name by which sender (or person on whose behalf message sent) carries on business If sent on behalf of another, identification of sender and on whose behalf sent Mailing address and one of telephone number, address or web address of sender/person on whose behalf sent Other prescribed info: Statement indicating that consent can be withdrawn SLIDE 26 CEMs must* also be in the PRESCRIBED FORM SLIDE 27 14

28 Prescribed Form for Messages identifies sender/person on whose behalf sent Name by which sender (or person on whose behalf message sent) carries on business If sent on behalf of another, identification of who sent, and on whose behalf contact info for sender/person on whose behalf sent Mailing address and one of telephone number, address or web address of sender/person on whose behalf sent No cost, easy unsubscribe mechanism: Same means as message sent, or other electronic means Gives Electronic address/web link for unsubscribe Set out clearly, must be able to be readily performed Effective without delay, no later than 10 business days SLIDE 28 Transition Government plans to provide several months lag between finalization of regulations and coming into force of regime Transitional Grandfathered existing business relationship implied consent for existing business relationship over any time period (i.e. not constrained by usual 2 year period) where that relationship included sending commercial messages Applies for 3 years after coming into force, or until recipient unsubscribes SLIDE 29 15

29 CASL Compliance To Do List Watch legislative developments carefully: final IC regs, in-force date, further guidelines/interpretations Review/modify practices for obtaining emarketing lists, choose vendors/partners carefully, bind to unsubscribe requirements Review/modify formats for emarketing Ensure effective and timely unsubscribe Review/modify program installations, associated disclosures and consent Ensure consent records are retained and retrievable Engagement of marketing, brand, technical resources to detect issues, ensure compliance SLIDE 30 Questions and Answers Adrian Lang David Elder 16

30 THE AGE OF CONSENT: Canada s Opt-In Anti-Spam Law Draws Near RESOURCES Articles APRIL 4, 2013 Many business concerns remain following revisions to anti-spam regulations, David Elder, CanadianCommunicationLaw.com January 7, 2013 CRTC guidance on check-boxes for e-marketing likely to tick off business community, David Elder, CanadianCommunicationLaw.com, October 12, 2012 CRTC clarifies anti-spam regulations: consent can include electronic forms David Elder, CanadianCommunicationLaw.com, March 30, 2012 CRTC tweaks anti-spam regulations, David Elder, CanadianCommunicationLaw.com, March 12, 2012 Legislation and Regulations Canada s Anti-Spam Legislation (unofficial title), S.C. 2010, c Electronic Commerce Protection Regulations, Canada Gazette, Part I Vol. 147, No. 1 (Jan. 5, 2013), at 29 Electronic Commerce Protection Regulations (CRTC), SOR/ Electronic Commerce Protection Regulations (CRTC), Telecom Regulatory Policy CRTC Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC), Compliance and Enforcement Information Bulletin CRTC Guidelines on the use of toggling as a means of obtaining express consent under Canada s anti-spam legislation, Compliance and Enforcement Information Bulletin CRTC

31 Many business concerns remain following revisions to anti-spam regulations Posted on January 07, 2013 David Elder Much-anticipated revisions to the originally proposed Electronic Commerce Protection Regulations provide some useful clarifications and additional exemptions with respect to Canada s Anti-Spam Law (CASL), but many concerns remain with respect to the potential over-reach of the not-yet-in-force law and the unnecessary and burdensome financial and administrative obligations that it may impose on legitimate business activity. In fact, while the revised Regulations do respond to some of the concerns raised with respect to the previously proposed regulations and indeed, the Act as a whole - the new Regulations may be more notable for what they don t include than for what they do cover. In this regard, many of the issues raised and exemptions requested by the business community following the pre-publication of the original proposed Regulations have not been accommodated, including: Accepting as valid under CASL consents to the receipt of commercial electronic messages that are obtained in compliance with the federal private sector privacy law, the Personal Information Protection and Electronic Documents Act. In the explanatory remarks accompanying the proposed Regulations, the Government explicitly indicates that CASL is intended to create a higher threshold for consent for the receipt of commercial electronic messages. Allowing Canadian businesses to send, on behalf of foreign organizations, commercial electronic messages to recipients outside of Canada. Concerned with the potential for abuse by spammers, the Government rejected submissions that the lack of an exemption for such activity would put Canadian outsourcing and cloud computing firms at a significant disadvantage with respect to their foreign counterparts. Allowing manufacturers without a direct relationship with end users of their products (such as where the products are purchased from a retailer) to send commercial electronic messages to those end users. The Government rejected an exemption for manufacturers as too broad, but as noted below, has created new exemptions with respect to sending warranty and recall information. Reducing the complexity of the requirements for the collection and withdrawal of consent for the receipt of commercial electronic messages sent by as-yet-unknown third parties. The MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY

32 Regulations continue to require organizations collecting such consents on behalf of such third party organizations to engage in detailed tracking of such consents and take responsibility for the actions of such third parties. Expanding the existing business relationship exemption to include legitimate commercial electronic messages sent in the context of additional ongoing business relationships, which do not clearly fall within the narrow definition of the current exemption. Nevertheless, the revised regulations do provide some clarification of key legislative terms, as well as new exemptions for business activities that were not intended to be within the scope of CASL. Moreover, the Government has indicated that Industry Canada and the CRTC are exploring the use of interpretational guidelines and other guidance material to provide clarity where appropriate. Virtual Friends One such clarification is that the revised Regulations amend the previous definition of personal relationship so as to correct what many argued was an unduly narrow exemption from the anti-spam requirements for commercial electronic messages sent between individuals. CASL provides that its core anti-spam provision does not apply to commercial electronic messages that are sent by an individual to another individual with whom they have a personal or family relationship. However, in the original regulations proposed by Industry Canada, the term personal relationship was defined so as to recognize only those relationships where the individuals concerned had actually met face-to-face within the previous 2 years. The revised Regulations exempt commercial electronic messages sent between individuals who have had direct, voluntary two-way communications, in circumstances where it would be reasonable to conclude that the relationship is personal. In reaching such a conclusion, all relevant factors are to be considered, including the nature and frequency of such communications, the length of time over which the parties have communicated and whether the parties have met in person. The two-year limitation period has been removed. Recipients of exempted personal relationship messages may opt-out of receipt of such messages, in which case the exemption no longer applies. The exemption may be most relevant for businesses where they may facilitate or encourage customers to send commercial electronic messages to their personal networks, such as through forward to a friend features. B2B Exemptions One of the chief criticisms of the earlier regulations, and of CASL as a whole, has been that the since the definition of commercial electronic message is so broad, the Act could impose unnecessary consent and disclosure requirements on regular business communications that should not be within the scope of the law. In response, the revised Regulations introduce new exemptions for commercial electronic messages sent within a business, or sent between businesses that are already in a business relationship, where the messages are sent by employees, representatives, contractors or franchisee and the message concerns

33 the organization or the individual recipient s role, functions or duties within or on behalf of the organization. Messages in Response Again, due to the broad definition of commercial electronic message, concerns were raised that businesses responding to inquiries could be caught by the anti-spam law. While CASL includes an exemption for individuals contacting an organization to inquire about its business, there was no corresponding exemption with respect to the organization s response. Accordingly, the revised regulations include a new exemption for commercial electronic messages that are sent in response to a request, inquiry or complaint, or that is otherwise solicited by the recipient. Incidentally in Canada One of the key concerns of many foreign companies was that CASL applies to commercial electronic messages that are either sent from or accessed through a computer system located in Canada. Accordingly, concerns arose about the potential application of the law to commercial electronic messages sent from outside Canada, to recipients who are ordinarily resident outside Canada, but who may access such messages during visits to Canada. A new provision in the revised Regulations appears to largely satisfy this concern, by exempting such messages, provided that they relate to a product, good, service or organization located or provided outside Canada, and that the sender did not know and could not reasonably be expected to know that the message would be accessed using a computer system located in Canada. However, uncertainties still remain, for example with respect to the treatment of a non-canadian sender who also makes the product or service in question available through a Canadian subsidiary or affiliate. Non-Transactional Business Communications The revised Regulations also include a new provision exempting commercial electronic messages sent for purposes relating to the satisfaction, notification or enforcement of legal or juridical rights and obligations, such as sending warranty or recall information, electronic bank statements, notices of copyright infringement, etc.. Again, such an explicit exemption was considered necessary by some in view of the broad definition of commercial electronic message found in the Act. Referral Messages The revised Regulations contain a new exemption for commercial electronic messages sent based on a referral by one or more individuals, where such individuals have an existing business or non-business relationship or a personal or family relationship with the sender and the recipient. The exemption applies only to the first commercial electronic message sent to contact the recipient, and the message must disclose the full name of the referring individual or individuals. Several stakeholders had previously expressed concern that without such an exemption, they could not directly act upon referrals from friends, family and clients without first obtaining consent.

34 Telecom Service Provider Software Finally, the revised regulations add two types of telecom service provider (TSP) software to the list of specified computer programs (such as HTML code, Java scripts, cookies, etc.), for which express consent is assumed if the individual s conduct leads to a reasonable belief that they consent to such an installation. The new exemptions relate to TSP programs to prevent unauthorized or fraudulent use of a service or system, or to update or upgrade systems on their networks. Next Steps While passed into law in December 2010, CASL has yet to be proclaimed in force, in part because the Government was awaiting the finalization of two sets of regulations: one to be made by Industry Canada, and one to be made by the CRTC. The Electronic Commerce Protection Regulations (CRTC) were finalized last year, and the CRTC has issued two interpretation bulletins to provide guidance as to how it intends to apply those Regulations. The proposed revisions to the remaining Electronic Commerce Protection Regulations were officially published for comment on January 5 th, 2013, starting CASL on the final leg of its long journey to coming into force. Following a 30 day comment period, it is expected that the Regulations will be finalized, and a date will be announced for the coming into force of the new anti-spam regime. For further information, please contact your Stikeman Elliott representative, any author that may be listed above or any of our lawyers listed at This article provides general commentary only and is not intended as legal advice. Stikeman Elliott LLP

35 CRTC guidance on check-boxes for e-marketing likely to tick off business community Posted on October 12, 2012 David Elder Although the date on which Canada s Anti-Spam Legislation (CASL) may come into force is uncertain, the CRTC has issued two bulletins that provide guidance as to how to comply with the new law, once proclaimed in force. But while some of the new guidance is helpful, other provisions will likely create significant operational concerns for businesses. The Commission is the body charged with oversight and enforcement of most provisions of the new law, including the core provisions respecting commercial electronic messages (CEMs), alteration of transmission data and the installation of computer programs. In addition, the CRTC has the power to make regulations under the Act with respect to certain matters. As we noted previously, the CRTC registered its Electronic Commerce Protection Regulations (CRTC) in March of 2012, providing additional clarification of these new regulations in a subsequent Regulatory Policy. The first of the new Compliance and Enforcement Bulletins provides further, and in some cases helpful, guidance on the interpretation of these Regulations, such as providing details on acceptable unsubscribe mechanisms for each of and SMS messages, including visual mock-ups of acceptable approaches. However, the Bulletin also indicates that the Commission considers that, where included in general terms and conditions of use or sale of a product or service, requests to send commercial electronic messages, alter transmission data or download computer programs must be obtained through separate positive affirmations of the user, such as the proactive checking of a tick-box to signify consent to each of these actions, in addition to the acceptance of other contractual terms or an organization s privacy policy. Most problematically, in a second Compliance and Enforcement Bulletin, the CRTC seems to be ruling out default settings that favour consent, even where the user can uncheck a box to exercise their choice (a process that the Commission refers to as toggling ) and where the user does provide a positive affirmation to a set of terms or an agreement. The following example, included in the Bulletin, shows that even where the pre-checked box and related consent is featured prominently, and is adjacent to a button that the user must pressed to signify agreement to a contract, the CRTC will not consider this to be valid consent to the receipt of CEMs under the anti-spam law. MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY

36 Another area of likely concern for businesses relates to CRTC guidelines respecting the collection of oral consent, a form of consent which is explicitly authorized by the Electronic Commerce Protection Regulations (CRTC). The Bulletin suggests that in order to be able to discharge the onus of proving that it obtained oral consent, a business would have to have that consent verified by an independent third party or retain a complete and unedited audio recording of the consent. We would note that, while these methods may work where consent is collected by telephone, through a call centre, they would create significant operational problems where consent is collected during a face-to-face interaction, such as might commonly occur at point of sale. While the Bulletins do not have the force of law, they do provide a clear indication of how the CRTC will interpret the law and regulations that is charged to enforce. For further information, please contact your Stikeman Elliott representative, any author that may be listed above or any of our lawyers listed at This article provides general commentary only and is not intended as legal advice. Stikeman Elliott LLP

37 CRTC clarifies anti-spam regulations: consent can include electronic forms Posted on March 30, 2012 David Elder Following the registration, three weeks ago, of its new anti-spam regulations, the CRTC has issued a regulatory policy explaining the changes made to the draft regulations that it had originally proposed, as well as providing some guidance as to how some of the requirements will be interpreted. In Telecom Regulatory Policy CRTC , issued to coincide with the publication of the Electronic Commerce Protection Regulations (CRTC) in the Canada Gazette, the Commission notes that many of the changes to the originally proposed version of the Regulations were made in response to public comments, and in most cases were amendments intended to be less prescriptive and more technology neutral. In an earlier post, we had summarized the main changes in the final regulations. Helpfully, the new Regulatory Policy appears to clarify several uncertainties that had been raised by these changes. Perhaps most significantly, the Commission explicitly indicates in the Regulatory Policy that consent obtained in writing includes electronic forms of consent, putting to rest one of the more significant concerns of companies operating over the internet. In other contexts, the Commission has accepted electronic forms of consent where a user signifies agreement through some positive action, such as clicking on an I agree box. Although in their final form, the Regulations are not yet in force. They will come into force on the day on which the core sections of Canada s Anti-Spam Law come into force, which is expected to occur later this year. MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY

38 CRTC tweaks anti-spam regulations Posted on March 12, 2012 David Elder Final regulations made by the CRTC under Canada s Anti-Spam Law (CASL) include a number of revisions that respond to concerns raised by Canadian businesses; but while some additional flexibility has been provided, the Commission appears to have left a number of other concerns unanswered. On 7 March 2012, the CRTC registered its Electronic Commerce Protection Regulations (CRTC), a final version of draft regulations that were originally proposed in June Those regulations, and the related Electronic Commerce Protection Regulations that were proposed by Industry Canada, attracted significant criticism from the business community, which expressed concern that the regulations omitted some important clarifications of the requirements of the law, failed to provide exemptions for certain business and behaviours that should not be caught by the legislation and imposed unworkable and unnecessary requirements that may have had a disproportionate impact on technologies such as text messaging. Those hoping for significant additions to the CRTC Regulations will be disappointed, as the revised Regulations remain in the same form, and appear intended to accomplish the same end, as the earlier version: namely clarifying the sender identity and contact information that must be included in commercial electronic messages and requests for consent to send such messages. However, to be fair to the CRTC, this narrow focus is consistent with the scope of the regulation-making power provided to the Commission under CASL. The final Regulations include the following changes from those originally proposed: Clarification that persons sending a message, or persons on whose behalf a message is sent, must identify themselves by the name by which they carry on business. Greater choice with respect to the contact information to be provided. Senders, and those seeking consent to send messages, may now provide either a telephone number providing access to an agent or a voice messaging system, an address or a web address. The original proposal seemed to require the provision of all of these, as well as a physical address. Revised requirements that web-based information be readily accessible and that the required unsubscribe mechanism must be able to be readily performed. The original proposed Regulations specified these requirements with reference to a maximum number of clicks. The revised Regulations now indicate that consent for the receipt of a commercial electronic message may be obtained orally, as well as in writing, as the original proposed regulations provided; however, the Regulations do not provide certainty as to whether electronic forms of MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY

39 consent will be considered to be in writing, which was the chief concern of many stakeholders with this requirement. See our earlier post for a discussion of this issue. The Regulations still require that when seeking consent, requestors must include a statement indicating that consent can be withdrawn, but no longer requires the requestor to specify through which avenues such a withdrawal of consent could be made. The publishing of the CRTC Regulations puts the country one step closer to CASL being proclaimed in force. The other shoes to drop include finalization of the Industry Canada Regulations (a revised version of which is expected to be published in the near future) and the selection of a vendor to run the Spam Reporting Centre contemplated by the Act. For further information, please contact your Stikeman Elliott representative, any author that may be listed above or any of our lawyers listed at This article provides general commentary only and is not intended as legal advice. Stikeman Elliott LLP