CASL – Outsell Leadership Council

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CASL Outsell Leadership Council. Canada s Anti-Spam Legislation and Regulations. Disclaimer. T he information provided herein does not constitute legal advice and should not be used as a substitute for seeking such advice . - PowerPoint PPT Presentation

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<p>Slide 1</p> <p>CASL Outsell Leadership Council Canadas Anti-Spam Legislation and Regulations#DisclaimerThe information provided herein does not constitute legal advice and should not be used as a substitute for seeking such advice.To avoid potentially misleading participants, I am not in a position to answer hypothetical or situational questions such as what if I as I cannot measure the varying circumstances or procedures you may have in place. These types of questions should be either reviewed by your legal counsel or sent in writing to the CRTC, for their review and interpretation. </p> <p>#History2004-2005 Canadian Task Force on Spam</p> <p>April 2010 The Electronic Commerce Protection Act tabled in House of Commons</p> <p>May 2011 Fighting Internet and Wireless Spam Act #History &amp; TimelineDecember 2010 CASL given Royal Assent by Govenor General</p> <p>December 2013 Canada's Anti-Spam law Announced as Coming Into Force</p> <p>July 2014 CASL (CEMs) Comes Into Force#TimelineJanuary 2015 CASL comes into force (programs)</p> <p>July 2017 CASL comes into force (PROA)#CASLWHY?#Do I send Commercial Electronic Messages?CASL does not apply to:non-commercial activity voice, facsimiles or auto-recorded voice calls (robo-calls) broadcast messaging including tweets and posts </p> <p>A Commercial Electronic Message (CEM) is a message whose purpose is to encourage participation in a commercial activity#To be clear, if the purpose or one of the purposes is to advertise, promote, market or otherwise offer a product, good, service, business or gaming opportunity or interest in land, these messages are clearly CEMs. The mere fact that a message involves commercial activity, hyperlinks to a person's website, or business related electronic addressing information does not make it a CEM underthe Actif none of its purposes is to encourage the recipient in additional commercial activity. </p> <p>Does not apply to:non-commercial activity (s.1(1))voice, facsimiles or auto-recorded voice calls (robo-calls) (s.6(8))broadcast messaging including tweets and posts (s.5)</p> <p>From the RIAS: To the extent that a message is sent in a pre-existing commercial context but does not fall within the definition of a CEM provided in subsection1(2) and subsection1(3) of CASL, it is not a commercial electronic message for the purposes ofthe Act. If the message involves apre-existingcommercial relationship or activity and provides additional information, clarification or completes the transaction involving a commercial activity that is already underway, it would not be considered a CEM since, rather than promoting commercial activity, it carries out that activity. Moreover, surveys, polling, newsletters, and messages soliciting charitable donations, political contributions, or other political activities that do not encourage participation in a commercial activity would not be included in the definition. However electronic messages may come within the definition of a CEM if it would be reasonable to conclude that one of the purposes is to encourage the recipient to engage in additional commercial activities, based on, for example, the prevalence and amount of commercial content, hyperlinks or contact information. To be clear, if the purpose or one of the purposes is to advertise, promote, market or otherwise offer a product, good, service, business or gaming opportunity or interest in land, these messages are clearly CEMs. Most notably,the Actaims to limit the opportunity to advertise, market, promote, or otherwise offer products or services under the guise of anon-commercialelectronic message. If it is reasonable to conclude that the message has one of those purposes, then the message would be considered to be a CEM and, subject to exclusions, the requirements ofthe Actwould apply. Sending to an Electronic Address?Under CASL an electronic address could beAn email accountA telephone accountAn instant messaging accountAny similar account</p> <p>#Do I Have Consent?Express Consent Did the recipient say yes to receiving your CEM?An individual must take action to opt-in to a stated purpose</p> <p>Implied Consent Can you show that you have an existing business or non-business relationship?Did the recipient disclose their address to you? Is the address published? Is there a statement saying they dont wish to be contacted?#CASL is based on an opt-in consent regime, which stipulates that no electronic message can be sent without:</p> <p>Express Consent (s.6(a))Can be determined when the organization presents an opportunity for the individual to express positive agreement to a stated purpose. Unless the individual takes action to "opt in" to the purpose in other words, says "yes" to it the organization does not assume consent. </p> <p>Implied ConsentArises where consent may reasonably be inferred from the action or inaction of the individual and is also further determined in section 11 regarding existing business relationships and existing non-business relationships. Implied consent also covers situations of conspicuous publication or disclosure. (s. 10(9) and 10(10))Can you show where you got each electronic address?</p> <p>You need to track how you obtained consent of each individual to whom you send CEMs.</p> <p>Note: A message sent seeking consent to send CEMs is also considered a CEMDo I Have Consent?#When is Consent Not Required?Quotes or estimatesMessages that facilitate or confirm transactionsProvides warranty, recall, safety or security informationProvides information about ongoing use or ongoing purchasesongoing subscription, membership, accounts, loans or similaremployment relationships or benefit plansDelivers a product good or service, including updates and upgrades</p> <p>NOTE: ID and Unsubscribe mechanism are still required for these types of messages</p> <p>#CASL does not apply to messages if:</p> <p>You have a Personal Relationship with the recipient individuals have a personal relationship (taking into consideration any relevant factors); andyouve had direct, voluntary,two-way communication.</p> <p>You have a Family Relationship with the recipientmarriage,common-lawpartnership or any legalparent-childrelationship; and youve had direct, voluntary, two-waycommunication.</p> <p>Is My Message Exempt?#Factors to consider for personal relationships: individuals have a personal relationship taking into consideration any relevant factors such as the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated or whether the parties have met in personIs My Message Exempt?CASL does not apply to messages that are sent:Within or between business, where theres an ongoing relationship;In response to a request; To enforce a legal right or obligation;Via closed messaging systems;Proprietary systemMessaging systems where ID and unsubscribe included on platformTo a foreign jurisdiction in compliance with their spam law; (see Schedule 1 in the ECPR)By registered charities raising fundsBy political candidates or organizations, soliciting political contributions#13Under regulatory authority in section 6(5)B2BExempting commercial electronic messages that are sent: (a) within an organisation, that concerns the business or affairs of that organisation; or(b) between two organizations, wherei. the two organisations have a business relationship; andii. the message relates to the business relationship between the two organisations.</p> <p>Responding to Inquiriespermitting commercial electronic messages that are sent in response to a request, inquiry or other solicitation by or on behalf of the person to whom the message is sent.</p> <p>3) Required by Lawexempting commercial electronic messages that are sent for the purpose of enforcing a legal right arising from an agreement or other legal obligation4) An example: A Brazilian company sends a commercial e-mail to Brazilians who happen to be in Canada to watch the soccer world cup, i.e. in Canada when they access the message The company in Brazil could not have known that a certain number of their subscribers would be in Canada when they receive the message.</p> <p>To be clear, the Act would not apply to these messages at all, no consent, ID and unsubscribe requirements What Should I do to Prepare?Examine your messagesDo you send CEMs?Are they covered by CASL?</p> <p>Provide ID and unsubscribe mechanismClearly identify yourselfProvide an unsubscribe mechanism in every CEM</p> <p>Get consentEither get clear express consent or track the source of implied consent</p> <p>Manage your contact listMake sure you can demonstrate consent for every recipientBe able to act on unsubscribe requests#2) Installing software on other peoples devicesConsentSpecial CasesComing into Force#When Do I Need Consent?You need to have express consent when installing a computer program on someone elses device</p> <p>The only exception is when you are acting in accordance with a court order#Installation of computer programs on someone elses device requires consent (s.8)</p> <p>Do I Need To Seek Consent?There are certain categories of programs where a person is considered to have provided express consent to installation:</p> <p> When TSPs install software toProtect their networksUpgrade or update their networks</p> <p> When addressing a failure in the system software or hardware</p> <p> If the program youre installing is aA cookie,HTML code,Java Scripts,An operating system,A program executable only through the use of another computer program that you previously obtained consent to install#1. deemed consent for TSPs to install computer programs to protect the security of the network from a current and identifiable threat to the availability, reliability, efficiency or optimal use of its network.2. deemed consent for TSPs to install computer programs to update or upgrade their networks. 3. deemed consent for the installation of computer programs that are necessary to correct a failure in the operation of a computer system or program that is already installed. </p> <p>8.(8) A person is considered to expressly consent to the installation of a computer program if (a) the program is(i) a cookie,(ii) HTML code,(iii) Java Scripts,(iv) an operating system,(v) any other program that is executable only through the use of another computer program whose installation or use the person has previously expressly consented to, or(vi) any other program specified in the regulations; and(b) the persons conduct is such that it is reasonable to believe that they consent to the programs installation.When Seeking ConsentDoes your programCollect personal information?Interfere with the owners ability to control their device?Change settings or preferences without the owners knowledge?Interfere with data, preventing the owner from accessing it?Cause the device to communicate with another without the knowledge of the owner?Install any software that can be activated by a third party?</p> <p>If YES, you must make this clear when requesting consent and it must be separate and apart of the licence agreement or EULAThis ensures people understand what theyre consenting to</p> <p>#(4) In addition to the requirements set out in subsections (1) and (3), if the computer program that is to be installed performs one or more of the functions described in subsection (5), the person who seeks express consent must, when requesting consent, clearly and prominently, and separately and apart from the licence agreement,(a) describe the programs material elements that perform the function or functions, including the nature and purpose of those elements and their reasonably foreseeable impact on the operation of the computer system; and(b) bring those elements to the attention of the person from whom consent is being sought in the prescribed manner.</p> <p>(5) A function referred to in subsection (4) is any of the following functions that the person who seeks express consent knows and intends will cause the computer system to operate in a manner that is contrary to the reasonable expectations of the owner or an authorized user of the computer system:(a) collecting personal information stored on the computer system;(b) interfering with the owners or an authorized users control of the computer system;(c) changing or interfering with settings, preferences or commands already installed or stored on the computer system without the knowledge of the owner or an authorized user of the computer system;(d) changing or interfering with data that is stored on the computer system in a manner that obstructs, interrupts or interferes with lawful access to or use of that data by the owner or an authorized user of the computer system;(e) causing the computer system to communicate with another computer system, or other device, without the authorization of the owner or an authorized user of the computer system;Consent for Program UpdatesConsent is required to install program updates or upgrades</p> <p>Consent can be assumed for updates and upgrades that fall into previously discussed categoriesConsent to updates or upgrades may be sought in advance of the actual installationRequests for consent for updates and upgrades must respect additional requirements if triggered#Businesses can update or upgrade pre-CASL installs where there was consent</p> <p>You may update or upgrade pre-CASL installs if you previously obtained consent to install the program</p> <p>A request for consent to update or upgrade software may be done:When program is first installedBefore each update or upgrade</p> <p>When Do I Need to be Ready?Coming into ForceSoftware provisions (s.8) come into force January 15, 2015</p> <p>Transitional Provisions3 year transitional period for updates and upgrades to existing computer programs For any software installed prior to January 15, 2015</p> <p>#July 1, 2014 - Majority of CASL comes into forceJanuary 15, 2015 - Section 8 (software) comes into forceJuly 1, 2017 - Private Right of Action comes into force</p> <p>3 year transitional period for updates and upgrades to existing computer programs (s.67)</p> <p>What Should I do to Prepare?Examine your softwareAre you installing on another computer?Is it a type of program for which you can assume consent?Does the program include functions that trigger enhanced requirements when seeking consent?</p> <p>Get consentIf necessary, develop a mechanism to seek and obtain consent before installing the program#Are you installing on another persons device?Do you have presumed consent? i.e. Is the program youre installing listed in s.10(8)?Are you updating or upgrading an existing program for which you previously obtained consent?Does your update or upgrade still fall under the original terms of consent?Does your program collect personal data, interfere with the device or cause the device to communicate with another?</p> <p>CASL : EnforcementCanadian Radio-Television &amp; telecommunication CommissionCompetition BureauOffice of the Privacy CommissionerPROAClass Action#Mention california law about whois22CASL : Why Do I Care?Applies to ALL CEMS comi...</p>