By Emily Lukaweski*
Canada’s Anti-Spam Legislation (CASL) came into force July 1, 2014. It established a set of rules for sending marketing and promotional emails, texts or other electronic messages, referred to as Commercial Electronic Messages (CEMs). These rules apply to law firms sending electronic newsletters, blog posts or other legal content marketing pieces.
On July 1, 2017, CASL’s transition period is coming to an end. Your firm can take action now to make sure it is prepared and avoid future CASL challenges.
The End of the Transition Period
CASL’s 2014 enactment included a three-year transition period allowing firms to send CEMs, if the recipient could be deemed to have given implied consent. If a person (an individual or a business) falls under this transitional implied consent exemption, a firm can continue to send that person CEMs until July 1, 2017, or until consent is expressly withdrawn.
Implied consent exists if a person had a business or non-business relationship with your firm within the two years prior to July 1, 2014, and that relationship included sending CEMs. Existing relationship has a broad definition that can be founded, for example, in a purchase of goods or services, a signed written contract, an accepted business opportunity, or a membership within a club or charitable organization.
What does this mean for your firm?
Your firm can take action to be prepared for CASLs upcoming changes. First, your firm can request express consent from clients to send CEMs. Express consent can be given either in writing or orally. The client must also take a positive action when giving their consent (e.g. by checking a box). Silence or inaction on the part of a client will not qualify. Important to note, when express consent is obtained, the client must also be given the contact information of the person sending the CEM and an unsubscribe mechanism allowing the client to opt out from receiving CEMs at any time. An easy way to obtain express consent is in a retainer letter. To ensure the client is actively opting in, highlight and have the client initial next to this portion of the letter.
Second, your firm can rely on other implied consent rules contained within CASL. Similar to the transitional implied consent exception, after July 1, 2017 consent to receive CEMs can be implied from an existing business or non-business relationship, however, there are time limitations of either two years or six months to this exception. Implied consent can also be found where the client has conspicuously published their e-mail address, as long as there is not a note accompanying the e-mail publication indicating the person is opposed to receiving CEMs. When using a conspicuously published e-mail to send a CEM, the CEM must relate to the recipient’s role, function, or duties in an official or business capacity.
Because the onus will be on your firm to prove either express or implied consent was given, maintaining full and accurate records will be key. These records should include whether consent was obtained in writing or orally, when it was obtained, why it was obtained, and the manner in which it was obtained.
Activation of the Private Right to Action - Delayed
CASL's private right of action was to be activated on July 1, 2017 as well but it has now been delayed. CASL’s PRA once activated, provides persons with the right to lay a claim against firms that send unwanted CEMs. There are significant monetary penalties, of up to $1,000,000 per day, available under the PRA, as well as individual liability for corporate actors such as directors and officers.
Take Home Message
Many lawyers expect these changes to create a flurry of CASL litigation, including a real potential for class actions, once the PRA is activated. Past experience shows that CASL enforcers are more than willing to find against a firm that cannot show a valid basis for sending a CEM. This means that July 1, 2017 CASL requirements could become an issue for your firm.
The next month presents an opportunity to ensure your firm has obtained implied or express consent. Doing so will ensure your firm can respond to the challenges of the PRA and to be prepared should any situation of enforcement by CASL agencies arise.
*A former Flex Lawyer