By Philip A.S. Milley, Associate Director, Legal Affairs

On July 27, 2016 the Canadian Radio-television and Telecommunications Commission (“CRTC”) released an Enforcement Advisory directed to businesses and individuals in Canada that send commercial electronic messages (“CEMs”).[i]  This advisory is a reminder to senders of CEMs that they must comply with the record keeping requirements under CASL and ensure they maintain evidence of consent.

The CRTC advisory notes that some businesses and individuals are unable to prove they have obtained consent before they send CEMs. The onus of proving consent, whether express or implied, remains with the person sending, causing or permitting the sending of CEMs.[ii] This is the case even if the sender is relying on an existing business or non-business relationship that was created prior and post July 1, 2014.[iii]

The CRTC advisory recommends that senders of CEMs 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

For more information on CASL compliance and record keeping, please refer to the following resources:

• CCCC’s how to guide for charities on complying with CASL;
• CCCC’s webinar on CASL;
• CRTC’s guidance on corporate compliance programs; and
• CRTC’s guidance onconsent and how to prove consent.

[i] See: http://news.gc.ca/web/article-en.do?nid=1104989.

[ii] An Act 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, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23, s. 13.

[iii] See: http://news.gc.ca/web/article-en.do?nid=1104989.

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