Thursday, March 26, 2015

U.S. Business Should Comply With the Canadian Anti-Spam Law

            On July 1, 2014, the Canada Anti-Spam Law (CASL) came into force.
            This law, on its face, applies to U.S. or foreign businesses that send commercial electronic communications, such as emails, text messages, social media messages, IM and voice messages, to recipients in Canada. See CASL Section 1 and Section 12.  This means that any such communications can only be sent if they comply with these 3 requirements:  (1) the sender received express or implied consent to send the communication, (2) the communication clearly identifies the sender, and (3) there is a unsubscribe mechanism on each communication.  See CASL Section 6(2).  Express consent can be obtained orally or in writing and lasts until revoked. See CASL Section 6(10); CRTC Regulation Section 4Implied consent can be proved in a number of ways, e.g., based on customer inquiry or purchase, and the term of implied consent varies from 6 to 24 months.  See CASL Section 6 (9-10).  The burden of proving consent rests with the sender of the communication. See CASL Section 13.

            The penalties for non-compliance with CASL can be high.  Fines can be levied up to $10,000,000.00 CAD for businesses and $1,000,000.00 CAD for individuals.  See CASL Section 20(4)Additionally, starting in 2017, there will be a private right of action.  See CASL Section 47.

            Even though the Canadian Radio-television and Telecommunications Commission (CRTC) has not yet attempted to enforce the law on an entity outside of Canada, we recommend compliance out of caution because it is less burdensome than dealing with a violation.

             Going forward, we recommend that whenever a customer from Canada contacts you that you obtain express consent to send them commercial electronic communications, and that you record how and when such consent was received.
- Henry Park

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