1. Preparing for Canada’s Anti-spam
Legislation
Shaun Brown - nNovation LLP
Marketo
May 19, 2014
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2. Preparing for CASL
Marketo - May 19, 2014
What we will cover
• What is it?
• Where is it?
• Who enforces?
• Key issues
• Getting prepared
• Focus on electronic messaging rules
• Based on most recent regulations and regulator guidance
• Coincides with Campaign and Database Checklists
• Q&A
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3. Preparing for CASL
Marketo - May 19, 2014
What is CASL?
Anti-
malware
Anti-
hacking
Anti-
spam
Rules for sending
Commercial
Electronic
Messages (CEMs)
Rules for installation
of computer programs
Prohibition against unauthorized alteration
of transmission data
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4. Preparing for CASL
Marketo - May 19, 2014
Where is CASL?
Dec. 2010:
Royal Assent
Mar. 2012: Final
CRTC Regs
Oct. 2012: CRTC
Guidelines
Dec. 2013: IC
Regs Final
Jul. 2014: CASL
(mostly) in force
Jan. 2015: Rules re:
Computer Programs in force
Jul. 2017: Private Right
of Action in force
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5. Preparing for CASL
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Primary requirements
1. Consent
- Either express or
implied
- Several exceptions
2. Identification
- CEM must identify
sender and include
prescribed contact info
3. Unsubscribe
- CEM must include
unsubscribe
mechanism
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6. Preparing for CASL
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Reviewing campaigns: process
1. Application
2. Exclusions
(complete)
3. Referrals
4. Exclusions
(from consent)
5. Implied
Consent
6. Express
Consent
7. Sending
Requirements
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7. Preparing for CASL
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Step 1: Application
• CASL applies to messages that are
– “Commercial”: reasonable to conclude that one of its
purposes is to encourage participation in commercial
activity
– “Electronic”: sent to an electronic address (email, IM,
Telephone, or other “account”)
• Exception: voice and fax messages excluded
– Sent to or from a computer system located in Canada
• Exception: does not apply to message sent to foreign
jurisdiction with anti-spam legislation
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8. Preparing for CASL
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Step 2: Exclusions (complete)
1. Personal/family rel’p
2. Inquiry or application
3. Within organizations
4. Between orgs. with a
rel’p
5. In response to inquiry or
request
6. To satisfy legal
obligation
7. To provide notice of
legal rights
8. Certain messaging
platforms and accounts
9. To foreign states with anti-
spam legislation
10. Fundraising by
charities/political
parties/candidates
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9. Preparing for CASL
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Step 3: Referrals
Sender
Recipient
Person who
makes referral
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10. Preparing for CASL
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Step 4: Exclusions (from consent)
Consent not required for a CEM that solely:
1. Provides a quote or estimate
2. Facilitates, complete or confirm a commercial transaction
previously agreed to
3. Provides information pertaining to warranty, recall, safety or
security about a product purchased or used by the recipient
4. Is about the ongoing use, purchase of subscription, membership,
account, loan or similar ongoing relationship
5. Provides information about an employment relationship or related
benefit plan
6. Delivers goods or services, including product updates or upgrades
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11. Preparing for CASL
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Step 5: Implied consent
Four categories of implied (i.e., deemed) consent:
1. Existing business rel’p (e.g., purchase)
– Time limited (2 yrs for purchase, 6 months for inquiry)
2. Existing non-business rel’p
– Less relevant for business
3. Conspicuous publication
– More relevant to B2B; conditions attached
4. Electronic address provided to sender by recipient
– More relevant to B2B; conditions attached
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12. Preparing for CASL
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Step 6: When seeking express
consent...
• Clearly and simply describe the purpose for obtaining
consent
– i.e., up front, at time of seeking consent. Not buried in privacy
policy.
• ID person seeking consent or person whose behalf consent
is sought
• Provide prescribed identifying/contact information
• Inform individual that they can unsubscribe
• Ensure that the process for obtaining consent qualifies as
"express" consent (CRTC has said no pre-checked boxes)
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13. Preparing for CASL
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CRTC views on “toggling”

14. Preparing for CASL
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Retaining evidence of consent
• Sender bears burden of proving consent
• Date/time stamp, URL, IP addresses
• Image of forms (web, paper)
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15. Preparing for CASL
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Step 7: When sending a CEM...
• ID person sending or person whose behalf message is sent
• Prescribed identifying/contact information
• Unsubscribe mechanism
• Avoid false or misleading representations in message,
subject line, sender information, etc.
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16. Preparing for CASL
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Enforcement
• Canadian Radio-television Telecommunications Commission
(CRTC)
• Role as enforcement agency is relatively new (began with
Unsolicited Telecommunications Rules)
• Broad investigatory powers
• Ability to impose administrative monetary penalties (AMPs);
up to $10 million/violation
• Private right of action available to anyone affected by a
violation (in force July 1, 2017)
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17. Preparing for CASL
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Liability flow
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Directors/
Officers
CorporationEmployees
Vicarious
Liability
D&O
Liability
Service Providers,
Partners, Affiliates,
etc.
Prohibited to aid,
induce, procure or
cause to be procured a
violation

18. Preparing for CASL
Marketo - May 19, 2014
Reconfirmation: considerations
• Database Checklist
• Transitional provision
• “Grandfathering” consent under PIPEDA (nNovation LLP e-
Marketing law blog)
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19. Preparing for CASL
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Getting prepared: essential tasks
1. Take inventory (campaigns, databases)
2. Review data sources and sign-up processes
3. Consider internal governance re: marketing and
compliance
4. Manage liability arising out of relationships; review
agreements with partners, providers, customers, etc.
5. Assess overall risk, develop policies and take action in
accordance with risk tolerance
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20. Preparing for CASL
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Resources
• nNovation LLP e-Marketing Law blog
• Canada’s Anti-Spam Legislation, http://www.canlii.org/en/ca/laws/stat/sc-
2010-c-23/latest/sc-2010-c-23.html
• Electronic Commerce Protection Regulations (Industry Canada)
http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00211.html
• Electronic Commerce Protection Regulations (CRTC),
http://www.crtc.gc.ca/eng/archive/2012/2012-183.htm
• CRTC Guidelines on the interpretation of the Electronic Commerce
Protection Regulations (CRTC) (CRTC 2012-548),
http://www.crtc.gc.ca/eng/archive/2012/2012-548.htm
• CRTC Guidelines on the use of toggling as a means of obtaining express
consent under Canada’s anti-spam legislation (CRTC 2012-549),
http://www.crtc.gc.ca/eng/archive/2012/2012-549.htm
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21. Preparing for CASL
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Contact
Shaun Brown
nNovation LLP
sbrown@nnovation.com
Twitter: @emarketinglaw
613.656.1297
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