A few key modifications were included in the publication of CASL’s final regulations that were greeted as good news by the marketing industry.
You do not have to requalify existing express consents in your database
The former draft regulation stipulated that even if you had express consent under Canada’s privacy law, you had to go out and get fresh consent. Under express consent, the intended recipient gives explicit permission (electronically, in writing, or orally with documentation) to a business or charity to send emails. According to John Gustavson, President/CEO of the Canadian Marketing Association (CMA), this “was going to be an enormous cost for big business.”
The good news is that under the final CASL regulations an organization does not have to re-qualify or re-confirm contacts that have already given that organization express consent. This is important because it means express consent obtained before CASL goes live, will be recognized as being compliant after CASL is live.
However, it’s important to note that certain scenarios of “implied consent” will not be recognized. Under the Personal Information Protection and Electronic Documents Act (PIPEDA) if a person does not clearly decline consent (such as in opt-out options and boxes), consent is granted. This is no longer the case under CASL and any mailing list subscribers falling under this umbrella would need to be reconfirmed.
Private Right of Action has been deferred
As described in the previous section the right to private action, which would allow consumers and businesses to take civil action against anyone who violates CASL, will be deferred until July 2017.
For the time being the government will be the only entity to prosecute transgressors of the new law. But the pressure is still on for companies to comply by July 2014. The government has indicated it will “go after bad actors first — the real spammers, the really egregious ones”. Legitimate businesses that are trying to comply should have some time to get onside.
CASL will not apply to messages sent to people in countries listed as having their own anti-spam legislation
There was previously some concern about Canadians sending emails to another country where there was a different set of spam laws. The recent changes amend this to get rid of the “double jeopardy” scenario as you don’t have to follow both (sets of regulations); you only follow where the recipient is.
Fundraising is now exempt
Registered Canadian charities and political parties do not have to worry about CASL for fundraising efforts. They do still have to comply with unsubscribe requests. It should also be noted that American political parties and charities are not exempt like their Canadian counterparts.
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