The Statutory Review of CASL is Complete

According to the Web Services Centre, Communications and Marketing Branch, Innovation, Science and Economic Development / Government of Canada - The Standing Committee on Industry, Science and Technology’s first scheduled meeting for the statutory review of Canada’s Anti-Spam Legislation took place on September 26, 2017.  It resulted in CANADA’S ANTI-SPAM LEGISLATION: CLARIFICATIONS ARE IN ORDER: Report of the Standing Committee on Industry, Science and Technology

In the Chair’s Forward, Dan Rumy M.P. states “The statutory review of CASL took place between September 26 and December 12, 2017. Throughout that period, the Committee held 13 meetings, heard from 41 witnesses and received 29 briefs from a wide array of stakeholders and experts. The recommendations presented herein to the Government of Canada carefully reflect and acknowledge the evidence and concerns received by the Committee. 

Ever since its enactment, CASL’s main challenge remains to balance, on the one hand, restricting the transmission of unsolicited commercial electronic messages in order to limit the costs associated with such messages and protecting Canadians against spam, and, on the other, allowing individuals and organizations to promote their lawful activities. Meeting this challenge requires clear legislative action that does not lead to unintended consequences. 

The recommendations made in this report also recognize that the Government of Canada should seize the opportunity to facilitate compliance with the legislation. While the Committee supports the principles and aims pursued by CASL, steps may be taken to ensure that the Act continues “to promote the efficiency and adaptability of the Canadian economy.” 

You can read the full report but below is the opinion of the Direct Marketing Association of Canada.


LIST OF RECOMMENDATIONS
As a result of their deliberations, committees may make recommendations which they include in their reports for the consideration of the House of Commons or the Government. Recommendations related to this study are listed below.


RECOMMENDATION 1

Editor’s note: if we understand this correctly, the Committee is recommending that all of these laws be “smashed together” to create one all-encompassing law covering communication, privacy and competition as well as all online or electronic communications and that law should be called “Electronic Commerce
Protection Act” 

The Committee recommends that the Government of Canada amend An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (the Act) in order to adopt “Electronic Commerce Protection Act” as its short title.

We think this would add to the confusion that we believe is already at epic levels and cause unnecessary delays in the enforcement of CASL. One of the single biggest challenges of CASL is a lack of communication (as clearly stated in the Direct Marketing Association of Canada’s submission to the INDU Committee) leaving the general public either confused or uninformed. What little awareness exists for CASL within the business community stands to be lost with a “re-branding” effort as suggested. 

Bottom line:  will combining these Acts cause more confusion?


RECOMMENDATION 2
The Committee recommends that the Government of Canada clarify the
definition of “commercial electronic message” to ensure that the provisions as enacted in the Act and its regulations are clear and understandable for parties subject to the legislation and do not create unintended cost of compliance. In particular, the status of administrative and transactional messages should be clarified.


In our opinion these definitions are clearly defined in the law.
Section 1 (1) clearly defines commercial activities:

1 (1) The following definitions apply in this Act. 
commercial activity means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada. (activité commerciale) 


Section (2) goes on to define the:

Meaning of commercial electronic message 
(2) For the purposes of this Act, a commercial electronic message is 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. 

Other commercial electronic message 
(3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message. 

Exclusion 
(4) An electronic message described in subsection (2) or (3) that is sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada is not considered to be a commercial electronic message. 

Person to whom a message is sent 
(5) For the purposes of this Act, a reference to the person to whom an electronic message is sent means the holder of the account associated with the electronic address to which the message is sent, as well as any person who it is reasonable to believe is or might be authorized by the account holder to use the electronic address. 



For any business committed to respecting its prospects and customers, it is clear when a message is intended to generate business, now or down the road. Keeping CEMs and transactional messages clearly separate, not allowing commercial suggestions to statements to creep in, is fair for all. The CRTC’s position is that as soon as a suggestion of commercial message sneaks into a transactional email, it transforms that email to a CEM. Black & white and fair for all parties. 

Are we looking to change the definition for those businesses looking to “beat the system”? Of course there will be a cost of compliance. In cases where no consent can be proven, those messages will have to be distributed by advertising or direct mail the way they should be. The creation of email does not give businesses the right to save millions of dollars in advertising while ignoring the recipients’ privacy. In our opinion CASL is a step in the right direction for returning control of an individual’s email inbox back to them.

Bottom Line: CASL is quite clear on what is (and is not) a Commercial Electronic Message (CEM). If CRTC would like to offer some real market examples and some clear guidance it would be welcome but there doesn’t appear to be any need to change the definition.



RECOMMENDATION 3
The Committee recommends that the Government of Canada clarify the
provisions pertaining to “implied consent” and “express consent” to ensure that the provisions as enacted in the Act and its regulations are clear and understandable for parties subject to the legislation and do not create unintended cost of compliance.


Once again the law defines these very well and needs no change.  All that may be required is some real market examples and clear guidance on this subject from CRTC. 

The law explains Express and Implied Consent very well, as does a series of articles titled CASL: The 5 Types of Consent

The “unintended costs of compliance” are strictly a function of not having to be responsible for proving consent in the past. Now we must and with that responsibility comes some costs. There are many cost effect ways to accomplish this should an organization be committed to it. In order to honour an individual’s consent, we must be able to track it and prove it upon request. It is the right thing to do for the consumer.

Bottom line: CRTC guidance will suffice.


RECOMMENDATION 4
The Committee recommends that the Government of Canada clarify the
definition of “electronic address” to ensure that the provisions as enacted in the Act are clear and understandable for parties subject to the legislation and do not create unintended cost of compliance.


This can be managed by CRTC putting out a guidance document clearly defining “electronic address”.

Bottom Line: CRTC guidance will suffice.


RECOMMENDATION 5
The Committee recommends that the Government of Canada clarify whether business-to-business electronic messages fall under the definition of “commercial electronic message.”


The answer is yes.  B2B messages are clearly a commercial electronic message as the intention of them is to conduct business. While many consider it an arduous task to build a Conspicuously Published list, there are many B2B considerations built in to CASL already. Any more dilution would make the law meaningless and even more confusing to all parties. 

Canada committed to an opt-in regime and some people are having trouble adjusting from the free-for-all opt-out society we came from. At the end of the day these changes in practices will make it safe to open our email inboxes again.

Purpose of Act 
3 The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, 

Bottom Line: CRTC guidelines will suffice.


RECOMMENDATION 6
The Committee recommends that the Government of Canada clarify whether electronic messages listed under section 6(6) of the Act fall under the definition of “commercial electronic message.”


Exception 
(6) Paragraph (1)(a) does not apply to a commercial electronic message that solely 
(a) provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent; 

(b) facilitates, completes or confirms a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent; 

(c) provides warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased; 

(d) provides notification of factual information about 
(i) the ongoing use or ongoing purchase by the per- son to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or 
(ii) the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent; 

(e) provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently en- rolled; 

(f) delivers a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent; or 

(g) communicates for a purpose specified in the regulations.
 

The CRTC can issue guidance documents with real market examples and situations for each of the exceptions in this section of the law.

We at the  Direct Marketing Association of Canada recommend to our members and to the market players who inquire, to “in a case where you are not clear, look at what your customer would like you to do (honestly) and err on the side of that.” With a fully Electronic Messaging compliant process in place, your documented decisions should be considered if investigated by CRTC.

Bottom Line: Once again this can be cleared up with clear guidance documents from CRTC.


RECOMMENDATION 7
The Committee recommends that the Government of Canada consider how to best incorporate messages sent on behalf of an authorized person with regards to section 6(2)(a) of the Act.


Contents of message 
(2) The message must be in a form that conforms to the prescribed requirements and must 
(a) set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent; 


So a message sent on behalf of a business partner must include the prescribed information for both parties. The prescribed information in every sent email is:
1. Clearly state your Company name and mailing address.
2. Provide a contact name and 2 ways to reach that person.
3. Include a working unsubscribe.
This information must remain active for a 60 day period after the message is sent.

So BOTH parties (sending and those on behalf we are sending), must include those 3 points.

This seems quite clear to us, but we are certain the CRTC can provide guidance and real market examples for those who wish it.

Bottom line: Once again this can be cleared up with clear guidance documents from CRTC.

RECOMMENDATION 8
The Committee recommends that the Government of Canada clarify the
application of the Act and its regulations to charities and non-profit organizations to ensure that the legislation is clear and understandable for these organizations and do not create unintended cost of compliance.


CASL created a 5th type of consent for this very purpose. IMPLIED CONSENT: Existing Non-Business Relationships covers charities and not-for-profits. 

The law already includes an exception for these organizations, allowing them to email people freely specifically to request donations.  What’s not allowed is promotional or commercial messages other than specific donation requests. 

Bottom line: CRTC Guidance and real market examples could help those in doubt.


RECOMMENDATION 9
The Committee recommends that the Canadian Radio-television and
Telecommunications Commission increase efforts to educate Canadians,
especially small businesses, with the goal of improving awareness and
understanding of the Act and its regulations as well as increasing awareness of the technological tools available to assist in complying with the legislation.


This is very sensible. The public is simply not aware of the facts. Strong and aggressive communications is both wanted and needed. The Canadian Government must grant CRTC a significant communications budget to allow them to educate Canadians at all levels.

Bottom line: significantly increase communication budgets and develop smart strategies for communicating how CASL benefits us all.


RECOMMENDATION 10
The Committee recommends that the Government of Canada further investigate the impact of implementing the private right of action, once changes and clarifications have been implemented to the Act and its regulations. At the same time, it could consider if an award of damages should be based on proof of tangible harm.


We agree with the NDP Supplementary Opinion written by Brain Masse, M.P. Windsor West, NDP, Innovation, Science and Economic Development Critic (page 37/38 of the INDU Report: Just implement it as is. 

“The NDP believes that the private right of action of this legislation should be enforced, as is, and not studied further. With the proper education and training on the existing legislation from the CRTC, we feel that businesses and organizations should be prepared and confident to send their CEMs and should not fear prosecution. We do support allowing consumers this option and would be comfortable with a grace period of one year or less to allow for the proper training, education and software implementation for businesses and organizations affected.“


They are generous in the one year grace period and that should suffice. The market and the courts will sort it out. If it does become a significant problem, make adjustments. Not implementing the PRIMARY enforcement tool will essentially remove any threat of repercussions and essentially discourage organizations/businesses from following the law.

Bottom line: Enforce the PRA immediately. The legal community will resolve any issues that arise.


RECOMMENDATION 11
The Committee recommends that the Government of Canada consider how the Canadian Radio-television and Telecommunications Commission can share information relative to the enforcement of the Act with domestic law enforcement agencies, including the Royal Canadian Mounted Police, the Department of Public Safety, and cybersecurity partners.


This sounds responsible and likely a PIPEDA issue rather than CASL.

Bottom line: examine PIPEDA and ask the Office of the Privacy Commissioner of Canada to provide guidance using real market examples.

RECOMMENDATION 12
The Committee recommends that the Government of Canada investigate with the Canadian Radio-television and Telecommunications Commission how to be more transparent in the methods, investigations, and determinations of penalties, as well as on the collection and dissemination of data on consumer complaints and spamming trends.


Any attempt to help organizations implement compliant programs is helpful. CRTC can certainly be more helpful in many cases, stating publicly what works and what does not under this law. Guidance with real market examples would be very valuable when implementing compliant programs.

Bottom line: issue guidance - clear, real market examples that have been encountered over the past 3 years.


RECOMMENDATION 13
The Committee recommends that the Government of Canada, the Canadian Radio-television and Telecommunications Commission, the Competition Bureau and the Office of the Privacy Commissioner of Canada replace the phrase “Canada’s Anti-Spam Legislation” by the short title “Electronic Commerce Protection Act” and the acronym “CASL” by the acronym “ECPA” in all guidance and enforcement materials as well as other publications on every support, including fightspam.gc.ca.


As stated in #1 Recommendation: 

We believe this would add to the confusion that is already at epic levels. One of the single biggest challenges of CASL is a lack of communication (as clearly stated in the Direct Marketing Association of Canada’s submission to the INDU Committee) leaving the general public either confused or uninformed. What little awareness exists for CASL within the business community stands to be lost with a “re-branding” effort as suggested. 

Bottom line:  In our expert marketing opinion a name change is a distraction and a step backwards and will results in confusion and less compliance.

We would love to hear your views on these recommendations.

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