CASL is here. Are you ready?

March 12, 2014 | Gillian Tuck Kutarna

Canada’s Anti-Spam Legislation (“CASL”) comes into force on July 1, 2014, and may significantly affect the way school boards are able to communicate with parents, employees, suppliers and stakeholders. CASL’s scope is broad, its reach is wide, and its penalties are steep, so the time to assess CASL readiness is now.

CASL prohibits sending a Commercial Electronic Message (“CEM”) to an electronic address unless the recipient consents, and the message contains prescribed information. A message is commercial if one or more of its purposes is to encourage participation in “commercial activity”, regardless of whether or not there is an expectation of a profit. A message qualifies as electronic if sent by any means of telecommunication, including email, voice, or social media.

School boards, schools, parent councils and foundations supporting school boards are advised to review the following examples of electronic communication for CASL compliance:

• School newsletters which contain offers to purchase goods and services, such as milk, pizza, school photos, magazine prescriptions;

• Travel opportunities offered by third party providers;

• Information relating to cashless payments for goods and services offered at school;

• Communications between staff which propose a commercial activity unrelated to school board activities;

• Invitations to respond to RFP’s.

Requests for express consent to receive CEM’s should become standard school board practice, and school boards should undertake a review of their technology and software capabilities to ensure that all forms of electronic communications satisfy prescribed requirements. Policy and procedure updates, staff training, and monitoring mechanisms to safeguard against inadvertent non-compliance will also be important components in demonstrating due diligence under the legislation and avoiding significant fines, if a message is sent in error.

Consent to receive a CEM can be express or implied. Once CASL comes into force, there will be restrictions on how consent can be obtained and the form that the consent must take. After July 1, an organization will not be able to send a CEM in order to request consent to send further CEM’s, unless there is a pre-existing relationship, but the criteria for establishing such a relationship are narrowly defined, and the onus of proof will rest with the sender.

Certain kinds of commercial electronic messages are exempt from CASL requirements. For example, a message that has as its primary purpose raising funds for a charity.

Where a CEM does not qualify as exempt, and it is not sent with recipient’s express or implied consent, and with the required content, the sender can be subject to extremely onerous administrative monetary penalties, which can be levied per incident of non-compliance. Effective July 1, 2017, recipients will also have a private right of action against the sender.

Now is the time to consider the most effective methods to become compliant and avoid inadvertent and expensive errors.

We will be discussing issues relating to CASL compliance in greater detail during our March ‘Morning Recess’ webinar, on Thursday, March 20 at 10:00.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

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