The $1.1 Million Dollar Unsubscribe Button

By Shereese Qually, Ryan Turner on 2015/03/09

Anti Spam ImageThe CRTC has issued its first penalty for a CASL violation in the staggering amount of $1.1 million dollars against the Quebec Company Compu-Finder.  It is the first of such penalties since CASL was enacted on July 1, 2014.  Compu-Finder’s violations included: sending emails without consent and using an “unsubscribe” option which did not fully function.

The looming date of July 1st, 2014 – the date Canada’s Anti-Spam Legislation (“CASL”) came into effect – has come and gone.  This new legislative regime has forever changed the manner in which businesses promote their products and services by electronic means in Canada.  For those who have not yet commenced an internal audit of their business to ensure CASL compliance, or prepared a CASL policy, it is not too late and may save your business and its directors from some unnecessary headaches and/or fines.

The following includes some basic tips and information to consider going forward.

Complaint Process

First, it’s important to note that the government departments responsible for enforcing CASL have created a reporting and complaints website here where violators can easily be reported and investigated.  Accordingly, it’s important to ensure your business is CASL compliant, as a complaint is as easy as submitting or forwarding a non-compliant email.

Key elements

Remember that CASL has 3 main elements where a Commercial Electronic Message (“CEM”) is sent or received in Canada: (1) Consent (2) Content and (3) Unsubscribe requirements.

1. Consent – the recipient of any CEM must have provided their express or implied consent to receive the CEM.

2. Content – all CEMS must: (i) identify your business and, if different, identify who the message is sent on behalf of, (ii) provide contact information of your business, which must be valid for a minimum of 60 days after the CEM is sent, and (iii) must include an unsubscribe mechanism.

3. Unsubscribe Mechanism – The unsubscribe mechanism must be set out clearly and prominently and be able to be readily performed.  If the recipient of a CEM unsubscribes, your business must ensure that within ten (10) business days no further CEMs are sent to unsubscribing business/individual.

Policy

Why do a policy?

Implementing a CASL policy provides your business’s representatives and employees with the necessary information to facilitate CASL compliance through guidelines that include processes and procedures to:

  • effectively obtain the necessary implied or express consents to contact potential customers by electronic means;
  • identify possible electronic messages that may be exempt from CASL (or from CASL’s consent requirements);
  • make sure CASL’s CEM content requirements are complied with;
  • ensure all unsubscribe requests are dealt with in accordance with CASL;
  • record all internal audits to support the availability of a due diligence defence if your business is found to have to violated CASL;
  • provide evidence that will ease the potential for a director to be held personally liable for any breach by the business or its representatives/employees; and
  • set forth appropriate social media policies and procedures.

Taylor McCaffrey LLP can help your business become CASL compliant.  We can assist in reviewing and amending your current practices and setting internal compliance procedures via a CASL policy.

Please contact:

th-qually-shereese            or           Ryan-Turner

Shereese Qually                                      Ryan Turner

 

 

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If you would like legal advice, kindly contact the author(s) directly or the firm's Managing Partner Norm Snyder at nksnyder@tmlawyers.com, or 204.988.0302.