Canada’s Anti‐Spam Legislation (CASL): FAQ The answers presented in this FAQ are for informational purposes only and should not be considered legal advice. More information and a link to the full text of Canada’s Anti‐Span Legislation can be viewed at www.fightspam.gc.ca Q: I send out travel confirmation emails on behalf of independent travel agencies. Do I have to state that I'm sending these emails from my company on behalf of the agents company? Essentially, do I need to have two contact information pieces (mine and the agents) on all emails? A: Technically it should be up to the agency to advise their clients that a third‐party will be sending them information – because your client is the agency – and their client is the traveller. Wearing my consumer hat – if received a communication from XYZ Company and had never purchased from them – I might wonder why my confirmation is coming from this other company. Assume therefore there is some form of reference in your communication who this is coming from. Q: Does the new legislation apply to Business to Business? Example: I am a hotelier and send a monthly newsletter to travel agents for promotion. A: This is considered an exemption under CASL because what you are sending concerns their business. You are also not asking the agency to make a purchase but rather making them aware of information that could be relevant to their clients. Q: The email sample that asked for "opt in" or unsubscribe, is this accepted by law for 6 months Implied consent or is this express consent if this was sent by email? A: If you send out a message like the example and the recipient responds with a “yes,” then you have Express Consent to send CEMs to that person until they unsubscribe. Although this Express Consent won’t expire on its own, make sure to follow the other rules of CEMs including having identifying information about you, and an unsubscribe mechanism. Q: If we have companies emailing us who we don't want to hear from, do they have to automatically delete our contact if we don't specifically tell them to remove us after July 1st? In other words...as a consumer we don't have to do anything really to stop receiving unwanted communications. A: If there is no existing business or non‐business relationship between you then all emails from these Canadian companies should stop after July 1st. However if there is an existing business or non‐business relationship between you, such as an inquiry in the last 6 months or a purchase in the last 2 years, then unless you unsubscribe they will have Implied Consent to send you CEMs until July 1st 2017 because of the three‐year transitional period. Q: You said after July 1 you cannot obtain express consent via an electronic means. So the sample email you used can only be used before July 1, is this correct? FAQ Written By Coralie Belman CTM(HON), President, Coralium Consulting Page 1 A: Emails requesting consent to send CEMs are themselves considered a CEM. After July 1st, you may only send an email like this if you have Implied Consent, such as an existing business or non‐
business relationship as defined in the legislation. Remember, you may not have this Implied Consent with every person on your email list, and even if you do, you need to make sure that it is documented in case you receive any complaints. Q: If you are 'cold calling' a sales prospect for the first time by email, would you recommend using the telephone for the initial contact? A: Under CASL, the only way you would be able to “cold call” by email is if the contact is a referral from another client which you have an existing relationship with. If the sales prospect is not a referral, then you must use a means other than email, such as telephone, for the initial contact. At that time you can verbally request consent to send them emails. However as a best practices – I always call a referral first rather than email. It’s more personal and easier to build a relationship. Q: You talk about not being able to obtain express consent after July 1st. If we sent an email blast out June 27 but client only replied after July 2st, agreeing to consent, would this be acceptable? A: Yes, you can obtain Express Consent at any time, but after July 1st you can no longer ask for it using electronic means unless you have standing Implied Consent. If you ask before July 1st but the client doesn’t respond until after, the consent is still valid. It is “their answer” that is coming in after the deadline not your communication being used post‐deadline. Q: Doesn't someone joining your FB agency page mean that they are giving consent to view it? A: Probably yes, but if you use a personal Facebook account then the consent may not be the same. In general, the CRTC says any status update on Facebook would probably not be considered a CEM, however leaves it open to interpretation depending on how you use the service. If you send someone a message or post on someone else’s wall it may be considered a CEM. To be honest it’s a bit ambiguous. Q: My client purchased an air ticket with my agency ‐‐ I send him a confirmation email ‐‐ on this confirmation email can I offer him a hotel reservations or car rental? A: Yes, this client has made a purchase from you, and therefore an existing business relationship exists. This allows you two years of Implied Consent from the date of the sale to send CEMs to that client (unless they unsubscribe!). Q: If an agent is an independent contractor working through an agency, if they leave the agency and go to another one, does the consent follow the agent (independent contractor) or the agency? A: The consent probably lies with the agency. However, depending on the wording of the consent when it was given and the contract between the agent and the agency, this may differ. Q: How does this legislation impact all the regular email messages we as travel agents receive from the many suppliers we get on an ongoing basis, many whom I have never purchased any product from? FAQ Written By Coralie Belman CTM(HON), President, Coralium Consulting Page 2 Q: I get messages from suppliers that I have never signed up with or never even heard of....so they are obviously purchasing email lists, will this stop? A: Tough questions. At some point maybe you gave your business card in at a show where they had a booth. Or maybe two years ago you made an inquiry. Or sometimes if you sign up for newsletters or e‐zines you end up having to get loads of other email “crap” as well. For instance I sold an NCL cruise and now I get an email every day from them. Supplier databases are not any cleaner and up‐to‐date than agency ones. But considering they supply travel products to you to sell to consumers – then a certain level of Implied Consent is there – especially if you have a published email address such as on your website – that is readily available to the public. What they can’t do though is email you about non travel stuff. Q: For US companies is CASL applicable? A: The USA has its own anti‐spam legislation which is different from Canada’s. In fact their legislation allows for opt‐out mechanisms. Very confusing for consumers since we have so many economic and sales ties with USA companies. Technically if emailing a Canadian consumer CASL is supposed to apply ‐ but we all know how difficult that is to police. Q: How does this affect companies located outside of Canada that are marketing via e‐blast or email to Canadians? A: CASL applies to any message sent from or accessed in Canada. However, it is unclear how it will be enforced on companies located outside of Canada. Q: We send email statements to hotels to collect commissions. I assume that is permissible, but how many times can we send a reminder? A: CASL does not apply to messages that facilitate, complete, or confirm a commercial transaction that is previously agreed upon. A message with an invoice or reminder to pay would likely be covered by this exemption so there is no limit. Send until you get paid – I say!!! Q: What about sharing an agency page? E.g. If I personally share my business page? Or what if one of our friends or clients share our page? A. Reading between the lines here I think you mean a Facebook page. The CRTC has said that they will take the specific circumstances into account when determining if communication over social media falls under CASL. In general, sharing a link to your Facebook page on your own Facebook would probably not be considered a CEM, however if you post a link directly on someone’s wall or send them a message with the link, then it may be a CEM. Remember, connections on a personal social media account may not be interested in constant updates about your business, so use your best judgement. As for friends or clients, you can’t reasonably control their actions so in either case you are not required to police them (unless you have specifically asked them to share, then you could be liable!) Q: What is CASL? A: CASL is Canada’s Anti‐Spam Legislation, which comes into force on July 1st, 2014. FAQ Written By Coralie Belman CTM(HON), President, Coralium Consulting Page 3 Q: What is a CEM? A: A CEM is a Commercial Electronic Message. It is defined as “any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.” CASL’s requirements primarily define the rules for how and when CEMs can be sent by businesses to consumers. Q: What is an Electronic Address? A: An electronic address is defined in CASL as being: an email account, a telephone account, an instant messaging account, and any other similar account. There is some ambiguity as to what could be considered a “similar account,” however in general anything that is sent to a specific person’s inbox would likely be considered an electronic address. Q: Do Tweets and Facebook posts count as CEMs? A: Usually not, but they can. CEMs are defined as being sent to an electronic address, so posting a tweet on Twitter or a wall post on Facebook would not count, according to the CRTC. However, messages on these platforms sent directly to a person’s account (such as a Direct Message on Twitter, a message sent though Facebook messenger, or a message sent through LinkedIn messaging) would be considered a CEM according to the CRTC. Q: What are some examples of CEMs? A: Depending on how they are used, Fax, email, text, newsletter, instant messenger, LinkedIn, Facebook, Tweets, Skype, blogs, or any other similar means of telecommunication could be considered a CEM. Q: What is the difference between Express and Implied Consent? A: One main difference relates to whether or not the consent expires.  Implied Consent exists when a business or non‐business relationship already exists, however there has not been specific permission given to send CEMs. This relationship has to have been active during the last two years, otherwise the implied consent is considered to be expired. If a client contacts the agency requesting information but does not make a purchase within a 6 month period then Implied Consent is no longer valid after that 6 month time frame.  Express Consent is an explicit agreement from a client that they are willing to receive CEMs. Express consent must be documented, and can be obtained verbally or written. In either case, the onus is on you to prove you have received this consent. Express consent must be given by opting‐in to the communications – that is the client must take an action that gives permission (such as clicking a checkbox). Consent cannot be assumed (such as having a pre‐clicked checkbox, which the client would have to unclick to opt‐out.) Q: Someone gave me their business card, is that consent to send a CEM? A: According to the CRTC you may have implied consent, as long as: - The message relates to the recipient's role, functions or duties in an official or business capacity; and - The recipient has not made a statement when handing you the business card that they do not wish to receive promotional or marketing messages (CEMs) at that address. Q: How can I keep a record of consent? A: Assign each employee to review their clients in the agency’s database. Select a “blank field” within the database, where employees can record CASL compliance and make sure that field is consistently used by each employee. They will need to record if consent is Implied or Express, the date consent was FAQ Written By Coralie Belman CTM(HON), President, Coralium Consulting Page 4 received and if it was obtained by an oral or written means. It is also good to note how it was obtained. For example: trade show ballot or business card. Q: What is the difference between Opt‐In and Opt‐Out? A: The difference applies to what action a consumer must perform to accept CEMs.  Opt‐in is when the client takes a positive action to give consent to receive a CEM. An example is a checkbox which a client must click to grant consent. An opt‐in mechanism is a requirement to prove Express Consent in CASL.  Opt‐out is a passive action: it assumes the client wants to receive CEMs unless they take an action to refuse the consent, such as unclicking a pre‐clicked checkbox if they do not wish to receive CEMs. CASL does not allow consent to be granted in this form. Q: What are the exemptions to CASL? A: Some exemptions to CASL include messages: - Sent to someone you have a family or personal relationship with, - Sent within a business, where the CEM concerns activities of the business, - Between businesses with an existing relationship, where the CEM is related to the nature of the business, - Providing factual information, such as an update about a change in details about a travel purchase, example: advising an annual insurance policy is about to expire, - Sent as a first contact to a referral received from a third party. Q: What qualifies as an “existing personal relationship?” A: The regulations governing CASL define a personal relationship as: “direct, voluntary, two‐way communications and it would be reasonable to conclude that they 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 person” (81000‐2‐175 (SOR/DORS) Electronic Commerce Protection Regulations Section 2(a)) In practice, the CRTC recommends limiting the use of this exception to close relationships. Importantly, a personal relationship can only exist between individuals – corporations cannot have a personal relationship. Q: Can I send a message to a referral? A: Yes, but there are restrictions. According to the CRTC, The referral must be made by an individual who has an existing business relationship, an existing non‐business relationship, a family relationship or a personal relationship with the sender and the recipient of the CEM. Also, the full name of the individual who made the referral and a statement that the CEM is sent as a result of a referral must be in the CEM. Q: If I am Facebook “Friends” with somebody, do we have an “existing relationship? A: No, according to the CRTC social media connections are deemed insufficient to constitute a personal relationship. FAQ Written By Coralie Belman CTM(HON), President, Coralium Consulting Page 5