Countdown to CASL: CRTC Issues Additional Guidance

July 8, 2014

Canada’s Anti-Spam Legislation (“CASL”) will be in force on July 1, 2014. As you are preparing your
organization for compliance, there is new regulatory guidance from the Canadian Radio-television and
Telecommunication Commission (“CRTC”) regarding the transitional provision under section 66, as well
as a new compliance bulletin.

Clarification of Transitional Provision

CASL provides a three-year transitional period, starting July 1, 2014, which allows organizations to rely
upon implied consent where there is an existing business relationship or existing non-business
relationship. During this period, a sender may send commercial electronic messages (“CEMs”) to
recipients with whom the sender has an existing business relationship or an existing non-business
relationship, if the relationship includes “the communication between them of commercial electronic
messages.” The legislative provision does not specify whether the messages need to be two-way or
one-way, and might even imply a requirement for the recipient to have responded.
Organizations and individuals may take advantage of the transitional period to seek express consent for
the continued sending of CEMs. Express consent does not expire after a certain period of time has
passed. It does not expire until the recipient withdraws their consent.
In interpreting the transitional provision, the CRTC has provided some welcome relief and has revised its
guidance to address this issue. It has confirmed that organizations can access the transitional period
even if the electronic communication is one-way, for example, from the sender to the recipient. This
means that you can continue to send messages for three years if: (i) your organization has an existing
business relationship or existing non-business relationship with the recipient, (ii) you have sent two or
more CEMs before July 1, 2014, and (iii) the recipient does not unsubscribe from receiving further
CEMs.

CRTC Compliance and Enforcement Bulletin – 2014-326

The CRTC has released a new Compliance and Enforcement Bulletin (“Bulletin”) addressing corporate
compliance programs. The Bulletin addresses compliance under CASL as well as the Unsolicited
Telecommunication Rules, which are applicable to telemarketing. In its guidance, the CRTC suggests
the following components be addressed when designing a corporate compliance program: senior
management involvement; risk assessment; written corporate compliance policy; record keeping;
training; auditing/monitoring; complaint-handling system, and corrective (disciplinary) action.
Additionally, the CRTC provides specific guidance in the Bulletin addressing compliance points under
these components for both the anti-spam and telemarketing regimes.

Disclaimer

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