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CASL CRTC Guidance on CASL Transition Provision – s. 66(b)

This afternoon, the Canadian Radio-television and Telecommunications Commission (CRTC) released some guidance on how section 66(b) of Canada’s anti-spam legislation (CASL) will be interpreted by the CRTC.  This guidance is available at http://www.crtc.gc.ca/eng/com500/faq500.htm under the section entitled “Transition”.

The new CRTC guidance states:

Transition

Question:  Once the law comes into force, how does it affect consent?

Answer:  Knowing that people and businesses may need to change their practices when it comes to sending commercial electronic messages (CEMs), the legislation includes a transitional provision that relates to the consent requirement. There are two types of consent – express and implied. The transitional provision set out in section 66 of CASL applies to implied consent.

Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. One-way communication for CEMs (e.g. where a business sends CEMs to a consumer with whom it has an existing relationship) is acceptable for the purpose of subsection 66(b), “includes the communication between them of CEMs”. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods of 2 years or 6 months, that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs.

In contrast, express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent.

Question:  In order for the transitional period in section 66 of CASL to apply, must the existing business relationship (EBR) or Non-EBR be created before the Coming into force of section 66 (i.e. 1 July 2014) or can it be created at anytime within the 3 year transition period (i.e. 1 July 2014 to 1 July 2017)?

Answer:  The EBR or Non EBR must be created prior to the coming into force of section 66 (i.e. 1 July 2014) in order to rely on the 3 year transitional provision. Any EBR or Non EBR created after July 1 2014 is subject to the time periods specified in the EBR and Non EBR exemptions (sections 10(10) and 10(13) ), and the 3 year transitional period cannot be relied upon.

 

Section 66 of the Act states:

TRANSITIONAL PROVISIONS

Existing business or non-business relationships

66. A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force,

(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(10) or (13), respectively, without regard to the period mentioned in that subsection; and
(b) the relationship includes the communication between them of commercial electronic messages.

 

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J. Andrew Sprague

To learn more about J. Andrew Sprague, please visit his biography located at http://millerthomson.com/en/our-people/j-andrew-sprague.

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