CASL: Reviewing The Regulatory Impact Analysis Statement

In the December 18, 2013 issue of E-TIPS®, we discussed Canada’s Anti-Spam Legislation (CASL) in two separate articles. In the first article titled “CASL To Come Into Force On July 1, 2014”, we provided a general overview of CASL and its two sets of regulations. In the second article titled “Industry Canada Publishes Final Version Of CASL Regulations”, we outlined what was included in the final version of the Electronic Commerce Protection Regulations published by Industry Canada under CASL (Industry Canada Regulations). In this article, we will discuss the guidance provided in the Regulatory Impact Analysis Statement (RIAS), which was published with the Industry Canada regulations. As a general overview, CASL creates an “opt-in” regime which prohibits, without the consent of an affected party, the sending of a commercial electronic message (a CEM), the installation of computer programs and the alteration of transmission data in an electronic message. “Opt-in” consent must be obtained from an affected party, subject to certain defined circumstances which are exempt or where consent can be assumed. CASL also requires that various formal requirements be met for CEMs, including that a CEM contain an unsubscribe mechanism and that certain identifying and contact information be provided to the recipient. The RIAS provides an overview of the Industry Canada regulations, discusses the consultation process that Industry Canada participated in to finalize its regulations, and sets out which stakeholder concerns were addressed and how. In addition, the RIAS indicates that guidelines are more appropriate than regulations to interpret the scope of CASL, and indicates that Industry Canada and the CRTC intend to issue, together, additional guidance information. The RIAS also provides guidance on how to interpret certain provisions of CASL, including the following:

• The RIAS discusses what does and does not constitute a CEM. According to the RIAS, to qualify as a CEM, one of the purposes of an electronic message must be to encourage the recipient in additional commercial activity. The RIAS identifies certain types of messages that do not meet this requirement, including surveys, polling, newsletters, and messages soliciting charitable donations, political contributions or other political activities. The RIAS also indicates that a message that involves a pre-existing commercial relationship or activity and provides additional information, clarification or completes the transaction involving a commercial activity that is already underway, would not be considered a CEM since, rather than promoting commercial activity, it carries out that activity.
• The RIAS indicates that express consent obtained under the Personal Information Protection and Electronic Documents Act (PIPEDA) before CASL comes into force, to collect or to use electronic addresses to send commercial electronic messages will be recognized as being compliant with CASL. However, other forms of PIPEDA consents including implied consent will not be valid.
• The RIAS indicates that IP addresses that are not linked to an identifiable person or not an account are not electronic addresses for the purpose of CASL. Therefore, banner advertising is not considered a CEM.
• The RIAS indicates that the publication of blog posts or other publications on microblogging and social media sites do not fall within the intended scope of CASL.
• The RIAS provides guidance on how to satisfy the identification and unsubscribe requirements that require a sender to identify all business affiliates in a CEM.

Summary by: Adam Lis