the Act regulates organizations that send commercial electron-ic
messages (CEMs), which include text, sound, voice and image
messages that encourage or solicit participation in a commercial
activity. This includes a CEM that offers to purchase, sell, barter
or lease a product, good, service or land, or that promotes a person
who is connected to these commercial activities.
The key requirement under this legislation is that as of July 1, or-ganizations
sending CEMs from or to Canada need to obtain the
consent of their recipients to send the message, subject to certain
exceptions and where consent is implied. This compliance dead-line
is significant because, after July 1, even the message requesting
consent will be considered a CEM and regulated accordingly.
Don’t think it’s worth the trouble to comply? The “stick” that
has made many organizations pay serious attention to CASL is
the serious penalties that may be imposed on offenders, which top
out at $10 million for corporations. Criminal charges can be laid
where organizations are alleged to have made false or misleading
representations regarding CEMs. And unlike most legislation,
CASL allows private rights of action. This means businesses and/
or consumers can seek damages of $200 per spam violation, to
a maximum of $1 million per day, with officers and directors of
companies who knowingly violate the legislation potentially being
held personally liable.
Of course, CASL includes several exemptions, which make its
compliance requirements somewhat less onerous. Electronic com-munications
sent within a business and between businesses that
are in an ongoing business relationship are one example. Also ex-empted
are messages sent to customers in response to a request
for information, quotes or complaints; messages sent to enforce
a legal right, such as those related to enforcing contractual obli-gations
or collecting a debt; and third-party referrals where the
CEM sender discloses in the message the full name of the person
who made the referral and the individual making the referral has
an existing personal or business relationship with both the send-er
and the recipient.
Under CASL, consent to send a CEM can be implied in certain
situations. Examples include where an organization sends a CEM
to a person with whom they are in an existing business or non-business
relationship, such as where the recipient has previously
bought or leased a product or service from the sender; been in-volved
in an investment opportunity; or has entered into a written
contract with the sender in the last two years or made an inquiry
or application to the sender within the last six months.
IMPLICATIONS
CASL will have a profound impact on an organization’s ability
to market its products or services, not to mention prospect new
business leads. Most importantly from an HR perspective, CASL
will force organizations of all sizes to develop new measures and
protocols to control the sending of electronic messaging across
their workplaces.
While organizations will make efforts to meet their compli-ance
obligations under CASL by July 1, 2014, unfortunately many
will leave themselves susceptible to violating these new rules by
failing to implement compliance measures that are sustainable.
In this respect, certain workplaces are particularly vulnerable –
think companies that employ a large sales force, employees who
are charged with maintaining customer accounts or conducting
business development or promotional activities. Often these em-ployees
have been performing their sales roles under the broad
mandate of closing the sale by whatever means necessary, and in
our digital age, this has meant heavy reliance on CEMs.
It is critical for employers to ensure their employees understand
and are held accountable for adhering to CASL because under the
legislation, companies whose employees are not in compliance will
be held vicariously liable for violations. Employers need to take
steps to protect themselves by:
Familiarizing themselves with the legislation – In particular,
organizations need to understand how CASL will impact their
operations, what they need to do to meet their compliance obliga-tions
and what sanctions they could face for violations.
Seeking consent – As mentioned, even messages seeking per-mission
to send CEMs will be considered spam after July 1. This
means there is simply no time to waste in obtaining that critical
consent, which could be as simple as sending a message to a cur-rent
email recipient from the company’s contact list and requesting
permission to continue receiving electronic communications.
Remember that you must also save that email confirmation in
case your electronic messaging practices are called into ques-tion
by the Canadian Radio-Television and Telecommunications
Commission, which will be enforcing the Act.
Understanding compliance gaps – There should be a robust
evaluation of where your company may be exposed to not meeting
compliance on an ongoing basis. This means assessing everything
from your marketing initiatives, sales processes to individual staff
practices to understand where you could run afoul of CASL.
Implementing policies – One of the keys to avoiding vicarious li-ability
exposure under CASL is creating and implementing CEM
workplace policies. These policies should make sense in the con-text
of day-to-day operations and be communicated in a manner
that gains employee buy-in. The policies must be simple to follow
and avoid burdening employees who could ultimately revert to their
old CEM tactics if they think the new methods are too onerous. To
compel adherence to these workplace policies, the consequences for
legal words
THE “STICK” THAT HAS MADE MANY
ORGANIZATIONS PAY SERIOUS ATTENTION TO
CASL IS THE SERIOUS PENALTIES THAT MAY
BE IMPOSED ON OFFENDERS, WHICH TOP
OUT AT $10 MILLION FOR CORPORATIONS.
18 ❚ JULY/AUGUST 2014 ❚ HR PROFESSIONAL