CRTC FAQs – A Great Resource for Organizations

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:
    1. where or how you discovered any of the recipient address(es);
    2. when you obtained the address(es);
    3. whether the address publication was conspicuous;
    4. whether the address was accompanied by a statement indicating that the person does not want to receive unsolicited CEMs; and
    5. 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.

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