Proving consent under CASL: CRTC issues enforcement advisory notice

The Canadian Radio–television and Telecommunications Commission (“CTRC”) has issued an Enforcement Advisory notice directed to businesses and individuals that send commercial electronic messages (“CEMs”) as part of their commercial activities. Notably, the sender of CEMs must have the consent of the recipient to send them a message, or else the message is considered spam. Section 13 of the federal anti-spam legislation (“CASL”) puts the onus on the sender of CEMs to prove that they have the proper consent, either explicitly or implicitly, to send the message. However, the CRTC has observed that some businesses and individuals are unable to prove such a thing.
Accordingly, the CRTC issued this Enforcement Advisory to remind relevant parties of the requirements pertaining to record-keeping in order to comply with section 13 of CASL. The Advisory reads, in part:

• Senders of commercial electronic message should consider keeping a hard copy or an electronic record of, among others:
• all evidence of express and implied consent (e.g. audio recordings, copies of signed consent forms, completed electronic forms) from consumers who agree to receive CEMs
• documented methods through which consent was collected
• policies and procedures regarding CASL compliance
• all unsubscribe requests and resulting actions

The CRTC further stated that these types of practices can assist the sender:

• identify potential non-compliance issues
• investigate and respond to consumer complaints
• identify the need for corrective actions
• demonstrate that these corrective actions were implemented
• establish a due diligence defense in the case of a violation of CASL

Businesses and individuals that are experiencing difficulty in obtaining consent or tracking it should consult the CRTC’s Guidance  on Implied Consent or the CRTC’s guidance on corporate compliance programs (Compliance and Enforcement Information Bulletin CRTC 2014-326).
By: Amanda Iarusso, Summer Student, McCarthy Tétrault LLP

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