RECENT DEVELOPMENTS IN DIGITAL MEDIA ADVERTISING LAW : CANADIAN EDITION VALERIE WARNER DANIN, ESQ.

CASL Legislative Background -Bill C-27 (2009) -Bill C-28 (2010) -Finally Passed December Commercial Messages July 1, Private Right of Action July 1, Installation of Computer Programs July 1, Amendments came into effect April 15, Amended: the Canadian Radio-television and Telecommunications Commission Act, PIPEDA, the Competition Act, and the Telecommunications Act.

Purpose & Scope -CASL “ To promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities. “ -CAN SPAM “(1) there is substantial government interest in regulation of commercial electronic mail on a nationwide basis; (2) senders of commercial electronic mail should not mislead recipients as to the source or content of such mail; and (3)recipients of commercial mail have a right to decline to receive additional commercial electronic mail from the same source” 15 U.S.C. §7701(b)

Commercial Electronic Message (CEM) -A CEM means any message that: -Is in an electronic format -Is sent to an electronic address -Contains a message encouraging recipients to take part in some type of commercial activity.

Exempt Messages Messages to: Family or person with whom you have a “personal relationship” Employee, consultant Current Customer Most Foreign Countries

Exempt Messages Messages about: Charity or Political Donations. Enforcement of legal right. Warranty, recall, safety or security information Purchase, subscription, membership or account information. Customer Inquiry w/ in last 6 months.

Implied Consent Implied consent includes when: A recipient has purchased a product, service or made another business deal, contract, or membership with the sender in the last 24 months; The sender is a registered charity or political organization, and the recipient has made a donation, has volunteered, or attended a meeting; or A professional message is sent to someone whose address was given to the sender, or is conspicuously published, and that individual hasn't published or told the sender that they don't want unsolicited messages.

Express Consent Requires: - A clear and concise description of the purpose in obtaining consent - A description of messages that’ll be sent - Requestor's name and contact information (physical mailing address and telephone number, address, or website URL) - A statement that the recipient may unsubscribe at any time. If you're requesting consent on behalf of someone else then that individual’s name and contact information must be included with the consent request.

Form of Consent Request

Required Information in CEMs -Sender’s name -Person on whose behalf the message is sent -Senders physical mailing address -Sender’s telephone number, , or website URL

Enforcement

Penalties* -There are no required minimum penalties. -Sending unsolicited CEMs, altering transmission data, or installing computer programs without consent: -$1 Million for Individuals or $10 Million for Corporations -Making false and misleading representations -Up to 1 year imprisonment and up to $200,000 in fines or Up to 14 years imprisonment and an uncapped fine for corporations. -Collecting e-address through unauthorized computer access or programs. -$1 Million for Individuals or $10 Million for Corporations *Also as of July 1, 2017 there will be a Private Right of Action which can be up to $1 Million a day.

-Since July 1, 2014 over 120,000 complaints have been filed at the Spam Reporting Center. -On October 7, 2014 the CRTC announced the settlement of the first action under CASL. A computer reseller sent millions of spam due to malware on the server. CRTC and the affected ISP worked together to stop the sending and bring the reseller into compliance. CRTC levied NO fine. Enforcement So Far

Compliance -Never pre-check boxes. -Exercise due diligence about location of recipients. -If you share lists, make sure unsubscribes are reported back. -Honor unsubscribes promptly. -Include all required info. -Don’t SPAM! (really.) -Keep Records.

Questions?