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WHAT IS CASL?

The Canadian Anti-Spam Law (“CASL”) came into effect on July 1, 2014, and applies to all Commercial Electronic Messages (“CEMs”) that are sent to recipients who are residents of Canada where the CEM is transmitted from or to computers or devices in Canada.  In simplest terms, CASL enforces the best practices that many companies have been utilizing in their marketing efforts for quite some time:

  • Individuals to whom you market should have chosen to receive such communications (i.e., they should have opted-in);
  • Unsubscribing should be easy; and
  • Lists should be scrubbed to remove outdated purchasers and prospects.

WHAT IS A CEM?

A CEM is any message that:

  • Is in an electronic format (e.g., emails and text messages);
  • Is sent to an electronic address (e.g., email address, instant message account, mobile phone number, or social media account); and
  • Encourages the recipient to purchase goods or services.

WHAT IS PROHIBITED UNDER CASL?

CASL prohibits the sending of CEM’s without first obtaining the recipient’s consent, which may be either explicit (i.e., opt-in) or implicit (i.e., existing business relationship).

DOES CONSENT EXPIRE UNDER CASL?

Express consent does not expire until it is revoked (e.g., via an unsubscribe).  Implied consent is valid for:

  • Two years from the date of the recipient’s most recent purchase of goods or services, or
  • Six months from the date of the recipient’s most recent inquiry regarding contemplated purchase of goods or services.

WHAT IS THE THREE-YEAR TRANSITIONAL PERIOD FOR IMPLIED CONSENT UNDER CASL?

Implied consent requires an “existing business relationship,” which may be established if the recipient has, within the previous:

  • Two years, purchased goods or services; or
  • Six months, provided his or her email address or mobile phone number in connection with a goods- or services-related inquiry (and not indicated that he or she does not wish to receive CEMs).

For a three-year transitional period that began on July 1, 2014, the definition of “existing business relationship” is not subject to the above-specified expiration periods.

WHAT STEPS DID XTIME TAKE REGARDING CASL COMPLIANCE?

For all of our dealerships that are subject to CASL, the Xtime Service operates as follows:
  • For all new customers added through Xtime Service channels, the marketing settings for phone, email, and text messages are all Opted Out by default;
  • Automated appointment reminders, completions and marketing features will not contact new customers (unless the new customer has given explicit consent);
  • When a privacy setting for any customer (new or existing) is changed, the Xtime Service sends an email to the affected customer to document the change, and logs an “audit record” of the change in its database; and
  • All customer-facing email notifications generated by the Xtime Service contain an “Unsubscribe” link.

ARE THERE EXCEPTIONS TO CASL’S REQUIREMENTS?

The following scenarios are exempt from CASL’s consent, content and unsubscribe requirements:

  • CEMs that are sent to a person following the purchase of goods or services within the previous two years;
  • CEMs that are sent to a person that relate directly to an inquiry for potential purchase of goods and services, where such inquiry occurred within the previous six months;
  • Interactive, two-way voice communications (e.g., telemarketing);
  • Messages sent by an employee, representative, consultant or franchisee of an organization to another employee, representative, consultant or franchisee of such organization, as long as there is a commercial relationship and the messages pertain to such commercial relationship;
  • Messages that provide warranty, recall, safety, or security information about a product or service purchased by the recipient; and
  • A single CEM that is sent to a recipient, without an existing business relationship, on the basis of a referral. The full name of the referring person must be disclosed in the CEM.

WHAT ARE CASL REQUIREMENTS AND BEST PRACTICES?

Requests for express consent should include all of the following information:

  • A clear and concise description of the purpose for obtaining consent; and
  • A description of types of CEMs that will be sent as a result of the consent.

CEMs must include:

  • The sender’s name, the person or entity on whose behalf the message is being sent (if any), the sender’s physical mailing address and the sender’s telephone number, email address and/or website URL.
  • If requesting consent on behalf of a third party, the applicable third party’s name and contact information; and
  • An unsubscribe mechanism.

Dealerships should ensure that they meet the following CASL obligations:

  • Unsubscribes must be processed within 10 days;
  • CEM subject lines must not be misleading or deceptive;
  • A physical address should be included in all of your CEMs;
  • You should have a process in place to remove customers and prospects from your lists when they become outdated under CASL (if they haven’t opted in);
  • Content of service-related messages (e.g., appointment confirmations, appointment reminders) must not contain promotional messages (unless explicit consent has already been obtained from the recipient for such CEMs); and
  • When requesting consent, checkboxes must not be pre-filled to suggest consent; for explicit consent to be valid, each subscriber must, instead, check the box themselves.

Xtime recommends that customer opt-ins be captured, wherever possible, using the Xtime Service’s privacy preferences.  This best practice will enable the establishment of privacy preferences that are documented more granularly than is possible using many third party tools, including dealership management systems (DMSs).

HOW IS CASL ENFORCED?

Three Canadian government agencies have been tasked with enforcing CASL:

  • Competition Bureau of Canada;
  • Office of the Privacy Commissioner of Canada, and
  • Canadian Radio-Television and Telecommunications Commission (“CRTC”).

IS THERE A PRIVATE RIGHT OF ACTION UNDER CASL?

Prior to July 1, 2017, CASL will be enforced by the CRTC (with a maximum available penalty to an organization of $10,000,000), with no private right of action.  Effective July 1, 2017:

  • Canadian citizens may bring private rights of action under CASL; and
  • For actions brought by Canadian citizens, penalties may range up to $1,000,000 for each day that a CASL offense has occurred.

Disclaimer:  The information provided here about the law is not legal advice, nor is it a substitute for reading or interpreting any applicable law, including CASL.  A link to the full text of CASL is provided here.  All readers are strongly advised to obtain their own legal advice regarding compliance with CASL.