The CRTC updated their CASL FAQs late December 2018 and there are some noteworthy changes that organizations may not be aware of, given that these updates were published without a public announcement or any media attention. The FAQs are a great resource for organizations in understanding their CASL obligations as well as the CRTC’s expectations. New Q&As are often added based on CRTC investigations and findings, as take-aways and learnings for all businesses.
Here are some additions to note:
- Scope of application – the CRTC specifically acknowledges that CASL applies to any messages received in Canada from other countries.
- A question that has often come up regarding the application of CASL to social media communications has been addressed with the following explanation: “In general, CASL does not apply to the one-way general broadcast of a commercial message on social media. For example, this could include the general broadcasting of tweets on Twitter. However, messages sent directly to users through a social media closed two-way direct messaging system, would qualify as sending messages to “electronic addresses” and CASL would apply.”
- As a result of one of the CRTC’s most recent findings against an ad network, “aiding” a CASL violation is addressed – liability could result if a business provides, for example, the necessary infrastructure or software to install malicious computer programs. The CRTC recommends that organizations do their due diligence by having the following in place: “Written contracts and corporate compliance policies or procedures to ensure compliance with CASL” and “measures to monitor how their services are used”. A fuller explanation can be found in Compliance and Enforcement Information Bulletin CRTC 2018-415.
- A detailed response to the question of whether consent can be implied due to the conspicuous publication exemption (e.g. the e-address is published on a website or trade magazine) has also been added to the FAQs. The response essentially covers the guidance provided in the Enforcement Advisory for the Professional Training Service Industry.
- The FAQs summarize the CRTC’s current position and expectations as follows: “If you are relying on the conspicuous publication exemption under CASL, you should have supporting information with respect to:
- where or how you discovered any of the recipient address(es);
- when you obtained the address(es);
- whether the address publication was conspicuous;
- whether the address was accompanied by a statement indicating that the person does not want to receive unsolicited CEMs; and
- how you determined that the messages you are sending are relevant to the roles or functions of the intended recipients.
For assistance with your CASL compliance initiatives, contact PRIVATECH.0