CASL - Key Provisions - Canadian Legal FAQs
Business relationships where the email recipient has: Been involved in a business, investment, or gaming opportunity with the business. Business furniture manufacturer HNI Corporation (NYSE: HNI) reported $ billion in revenue for net income of $86 million. Fourth quarter sales were Raleigh, NC –. North Carolina is Before July 1, CASL considered Implied Consent—a three-year existing business relationship—as compliance. However, that. Penalties for the most serious violations of CASL include a maximum penalty of to rely on consent being implied in cases of an existing business relationship.
The transfer of these valuable marketing tools in the context of an asset acquisition presents certain risks to purchasers, as it is subject to strict consent requirements, both privacy consent requirements i.
If customer distribution lists, or any form of personal information used to send CEMs, are transferred in violation of CASL or privacy legislation, a purchaser could expose itself to significant penalties after closing. Consents may be express e. An existing business relationship arises, for instance, where a person has purchased a product or service from the sender within two preceding years of receiving the CEM, or has made an inquiry to the business within the preceding six months, and in either case has not unsubscribed from receiving CEMs.
While CASL provides for the existing business relationship to be transferred following the sale of a business to a purchaser, it does not specifically state the consents that flow from that relationship and held by the business may be transferred as well.
Therefore, a significant CASL issue to be addressed when dealing in an asset acquisition involves obtaining and maintaining the consents of customers to receiving CEMs on this basis. When purchasing private information used to distribute CEMs, the purchaser must ensure that the consents being purchased from the seller are validly held and transferrable under CASL and privacy laws. In addition, the RIAS only provides guidance on the transfer of express consents; the direct transfer of implied consents such as those arising from an existing business relationship is not addressed.
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Therefore, the new owner will be able to continue sending CEMs to the recipients that gave express consent, as long as the other requirements of CASL are met. CASL also specifically indicates, at section 10 12 that, with the sale of a business, any existing business relationships EBR are considered to now be with the new owner of the business. An example given by the CRTC in the Guidance seems to suggest implied consents do not transfer per se, but rather the exemption from consent created by a valid existing business relationship may be relied upon by an acquiring business.
However, the onus is on the purchaser to ensure such underlying business relationships are, in fact, valid. In other words, Guidance suggests that such relationships are not divisible, creating an all-or-none situation. Keeping Track of Them All Assuming that consents to receive CEMs are transferable, issues may arise with respect to the way that such consents are documented.
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A purchaser should conduct proper enquiries to ensure that the seller has kept detailed records of how, when, and for what purpose the consents were obtained and whether it has sufficient tools to keep track and identify them all. If the consents have not been validly obtained in the first place, no transfer of consent in fact occurs. The Act creates a permission-based scheme under which consent is required before a CEM can be sent.
Consent can be either express or implied. Express Consent Express consent means that a recipient has voluntarily agreed to receive a CEM and this consent is documented. The CRTC has set out guidelines that state the information that must be in a request for express consent: The purpose or purposes for which consent is requested; The name of the person seeking consent and the name of the person ,if it is different, on whose behalf consent is asked; A statement indicating which person is asking for consent and which person on whose behalf consent is being asked; If the person seeking consent and the person, if different, on whose behalf consent is sought are carrying on business under different names, the names of those businesses; The mailing address, and either a telephone number providing access to a person or a voice messaging system, an email address or a web address for the person asking for consent, and if different, the person on whose behalf consent is asked; and A statement that the recipient of the CEM can withdraw consent at any time in the future by using this contact information.
You will find more information about the unsubscribe mechanism at the end of this section. Oral consent can be proven by verification by an independent third party, or where a complete and unedited audio recording of the oral consent is kept by the person asking for consent or a client of the person asking for consent.What Does Canada's Anti-Spam Legislation (CASL) Mean For Your Company?
Once express consent is obtained, it does not expire, unless the person giving consent withdraws it at any future time. The CRTC has issued Compliance and Enforcement Bulletin that gives guidance about obtaining express consent and gives two examples of forms that are acceptable. You will find these forms at the end of this section.
An example of this could be a person who receives a CEM from a person to whom they gave their business card, with their email address on the card. Generally speaking, implied consent lasts for two years, providing an opportunity for organizations to change an implied consent to an express consent.
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CASL includes a transition period that allows for implied consents to remain active until July 1, In addition, where there is an existing business relationship, each transaction renews the implied consent, so that the two-year existing business relationship starts over. It is important to note that after July 1, CEMs may only be sent with the explicit or implied consent of the recipient.
Because a message seeking explicit consent is, in itself, a CEM, after July 1, these can only be sent to people or organizations with which you have an implied consent relationship.
Existing Business Relationship An existing business relationship between the sender of the CEM and the recipient will be found if, within the previous two years the recipient has: The existing business relationship is renewed with each transaction, so that the two-year existing business relationship starts over. Existing Non-Business Relationship Existing Non-Business Relationships are of particular importance to registered charities and not-for-profits.
An organization has an existing non-business relationship with a recipient if the recipient has, within the previous two years: In the case of a registered charity, made a donation or gift, or has performed volunteer work for the charity; In the case of a not-for-profit, has been a member of the organization, such as a club or association.
Each time that a recipient makes a donation or gift, or volunteers, the two-year implied consent period begins again. It is the same case for not-for-profits. Each time a member renews, the two-year implied consent period begins again.