CASL Checklists: Are You Abiding By the Law?

July 27, 2015
Written by
Jacob Hansen
Opinions expressed by Twilio contributors are their own

CASL Checklists: Are You Abiding By the Law?

Over the past few years, the email community has kept up with the progress of the Canadian Anti-Spam Legislation (CASL). Since CASL went into effect (just over a year ago on July 1, 2014), the Canadian Radio-television and Telecommunications Commission (CRTC) has been able to prosecute any companies not abiding by the requirements of the legislation. Starting on July 1, 2017, the law will also allow individual email recipients to pursue damages directly from senders for not complying with CASL laws.

With the knowledge of this impending right-of-action, and the fact that the CRTC has already pursued a few companies for CASL violations, we thought it would be a beneficial to host a webcast on all things CASL.

We were lucky enough to book Shaun Brown to fill the role of CASL expert for CASL Compliance 101: What Your Business Needs to Know About Canada's Anti-Spam Legislation. He's a legal expert with Nnonvation LLP and has been studying the details and legal scope of CASL for years. Fun fact: Shaun even assisted in some of the final drafting of CASL! We went ahead and summarized some of the main takeaways from the webcast below:

APPLICATION OF THE LAW: CASL applies to messages that are commercial or electronic and sent to or from a computer system located in Canada.

Commercial: reasonable to conclude that one of its purposes is to encourage participation in commercial activity
  • Mere inclusion of hyperlink or logo will not render a message “commercial”
Electronic: sent to an electronic address (email, IM, telephone, or other “account”)
  • Exception: voice and fax messages excluded
  • Social media:
    • Tweets/posts – no
    • Directing messaging – yes
IDENTIFICATION OF THE SENDER: The Commercial Electronic Message (CEM) must identify sender and include prescribed contact info.

UNSUBSCRIBE: The CEM must include an unsubscribe mechanism.

PROOF OF CONSENT: The CRTC has stated that you should have “a record of the date, time, purpose, and manner of that consent…stored in a database.”

DEFINITIONS OF CONSENT: This is one of the main details that separates this law from CAN-SPAM. In fact, the United State's CAN-SPAM ACT is one of the few remaining laws that allows commercial email to be sent with no prior consent.

Express Consent - This is obtained when you explicitly ask your potential contacts for permission to send them email and they take an action that agrees.

When seeking express consent:
  • Clearly and simply describe the purpose for obtaining consent (i.e. up front, at the time of seeking consent–not buried in the privacy policy)
  • Identify the person or entity seeking consent or, if seeking on behalf of another person or entity, clarify that relationship as well
  • Provide prescribed identifying/contact information
  • Inform individuals that they can unsubscribe
  • Ensure that the process for obtaining consent qualifies as "express" consent (CRTC has said no pre-checked boxes)
Implied Consent - This will exist in a scenario where the conditions of express consent have not been met, but a previous relationship exists. The main 4 categories of implied consent are:

1. Existing business relationship (this can include a previous purchase)

2. Existing non-business relationship

3. Conspicuous publication

4. Electronic address provided to sender by recipient

Check out the specific conditions for each type of consent in the CASL checklist for your database that's hyperlinked below.

Stay tuned for our follow-up post about exclusions to CASL.

As we mentioned above, Shaun was gracious enough to share some additional CASL assets which you can use as tools for evaluation of your current email program. Check out the CASL checklists for your campaigns and your database.

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