Article
Guide to Doing Business in Canada: CASL
gowlingwlg.com
Quoted on this wiki
Every place a page here uses this source, in the order the words come in it.
1. Overview “before sending an electronic message that encourages participation in a commercial activity - including most standard promotional or advertising emails and texts - the sender must have either the express or implied consent, as defined under CASL, of each recipient.” CASL's computer software provisions are aimed at preventing the installation of unauthorized malware and spyware computer programs; however, they have varying degrees of impact on all types of software applications. Section 8 of CASL requires express consent to install a computer program on another person's computer system in Canada during the course of commercial activity. Enhanced disclosure and consent requirements apply where the software performs certain prescribed functions.
Taken together, this case signals that implied consent must be interpreted narrowly to prevent email address mining from third-party directory websites. “CASL will deem the sender to have consent to send a single message to a recipient where another individual has referred that person to the sender and has provided their electronic address.” Records of consent CASL places the onus of proving the existence of consent on the person or organization claiming to have it. As such, it is important for organizations that send CEMs to retain records sufficient to establish that they have CASL compliant consent if they are ever faced with enforcement action. The CRTC has indicated that to help establish adequate proof of consent, organizations that send CEMs should retain records, such as any signed consent forms or completed electronic forms from individuals, documentation of the organization's consent processes, records of their policies and procedures in respect of CASL compliance, and a record of all unsubscribe requests and their resulting implementation. Because these records are typically compiled during the conduct of business for the purpose of establishing legal compliance, they are subject to production orders under CASL's regulatory framework. The Federal Court of Appeal in Compufinder required the CEM sender to demonstrate, with admissible documentary evidence, how it either gathered consent or how it satisfied one of the exemptions. Therefore, it is recommended that organizations create and maintain these records.
An electronic message that requests the recipient's consent to receive further electronic messages is itself a CEM and, as such, may only be sent with prior consent. “This includes email, texting, instant messages, messages to telephone accounts, or messages sent to any "similar account", such as certain forms of social media messaging or other digital messaging systems where a message is sent by one person to one or more specific electronic addresses.” CASL also does not apply to electronic messages that are displayed to the general public rather than sent to an electronic address. For example, CASL will not apply to display advertisements such as banner or box advertisements, or to social media messages that are published through means more akin to a one-way general broadcasting such as a Facebook wall post. It will, however, apply to private messages sent through those social media platforms to one or more recipients, such as messages sent directly to other users through a two-way direct messaging system.
Quotes are verbatim and belong to their publishers. Where a quote has been translated, the original wording is kept below it.