While Canada's Anti-Spam Legislation (CASL) comes into effect on July 1, 2014, there is still a considerable amount of ambiguity regarding how CASL will be applied and how it will affect various industries, including marketing research. The good news is that MRIA has received definitive confirmation from the federal government that the new law won’t apply to legitimate marketing research where there is no attempt to solicit. Read more...
CRTC Letter regarding Market and Survey Research
Click here to download a letter from the CRTC to the MRIA regarding how CASL applies to marketing and survey research.
a FREE WEBINAR WITH kARA mITCHELMORE, mba, fcma, mria CEO
Listen at any time to our informative webinar on key aspects of the new CASL legislation, including how the legislation impacts electronic communications, the phase-in periods, definition of express consent, recent legislative updates and CASL in the media. To hear the recording, Click Here.
Ottawa: August 7 2014 - Public Opinion Research Directorate (PORD) held discussions with the CRTC regarding CASL and provided the following clarification:
- CASL does not apply to federal or provincial governments; therefore it would not apply to a 3rd party contracted by the GC or a provincial government to conduct research solely on behalf of the GC
- CASL does however apply to Crown corporations/municipal governments
Below are further clarifications we are providing for MRIA members, based on questions received this week (visit the MRIA CASL webpage)
- Who might be found liable for a non-compliant email?
- It would be the sender and the person on whose behalf the communication is being made. The key section in CASL is Section 6, whereby it is "prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message" unless certain requirements are met.
There is no exception in CASL for market and survey research. Rather, the Government has confirmed with MRIA that they do not consider internet research to be a commercial activity, therefore CASL does not apply.
That said, the Act would apply to an incentive that offered an opportunity to be entered into a draw or contest as CASL is explicit that "gaming opportunities" are considered commercial in nature.
The law gets grey when it comes to offering financial incentives. Potentially, the offer could be interpreted as a being commercial in nature. Unfortunately, the language in CASL is ambiguous and does not provide a clear, definitive answer regarding monetary incentives.
There is, however, a strong legal case to be made that a financial incentive should not trigger CASL. CASL targets messages that encourages participation in a commercial activity. As the Government has been clear that survey research is not a 'commercial activity', then the incentive itself SHOULD NOT trigger the Act because it is encouraging participation in a NON-commercial activity (i.e. the survey).
So, all told, our position is legally defensible when it comes to financial incentives. That said, we're at the whims of the CRTC (the government department responsible for administering this section of CASL) and potentially the courts.
So far, the CRTC has not given us a clear answer on how they would interpret a financial incentive, but they have flagged it as a potential commercial activity. Given how the CRTC is broadly interpreting the term 'solicitation' used in other legislation, members should be aware of the potential implications.
Given the above, our legal counsel recommends that members meet the obligations under CASL whereby organizations can continue to communicate with the public as long as they follow three requirements when sending an electronic commercial message:
- Consent is required
- Option to unsubscribe
- Clear identification (including on whose behalf a commercial electronic message is sent, which may be done by providing a hyperlink to a webpage containing this information is acceptable as long as the webpage is readily accessible)
The MRIA will continue to work with and educate the CRTC on this issue in the hopes of getting a more definitive and positive statement for them.
CASL Frequently Asked Questions
Application: CASL will not apply to emails that contain online research question
- CASL only applies to commercial electronic messages (email, text, social media) - that means that the law is only triggered if the communication contains a solicitation.
- Electronic messages that DO NOT solicit (such as online research), are NOT captured under the Act. Therefore NO consent is required when sending an email questionnaire to a potential respondent or panel member.
Application: CASL may be triggered by incentives
- There is a grey area when incentives are offered to encourage participation in an online study or panel, as this may be considered a 'solicitation,' thereby making the communication 'commercial' in nature and triggering the Act.
- MRIA is of the opinion that incentives should not trigger CASL as the recruitment process is a component of a non-commercial activity (research), and that researchers are not asking selling anything; however there are indications that the CRTC (one of the government bodies responsible for enforcing CASL) are taking a broad approach in how they interpret 'solicitation' and that they would likely consider the offer of incentives as commercial in nature. MRIA is currently in discussions with the CRTC regarding this issue.
What does CASL require?
- Should CASL apply, organizations can continue to communicate with the public as long as they follow 3 requirements when sending an electronic commercial message:
- consent is required (more on consent below)
- option to unsubscribe
- clear identification (including on whose behalf a commercial electronic message is sent, which may be done by providing a hyperlink to a webpage containing this information is acceptable as long as the webpage is readily accessible).
- CASL also includes provisions related to spoofing and phishing, ID theft, spyware, malware, botnets, etc.
- Express consent: In most cases, express consent is required unless there is an existing business or non-business relationship. Express consent is NOT time-limited, and will remain valid until the recipient withdraws consent. Express consent obtained prior to July 1, 2014, is valid.
- Implied consent is permitted in cases of:
- An existing business relationship (includes purchases, leases, and enquiries about goods and services)
- An existing non-business relationship (includes gifts, donations and volunteering for charities and political parties) (includes members in a club, association, and volunteer organization).
- A recipient's contact information (i.e. email) is willfully provided (i.e. business card) or is conspicuous and published in plain sight, for example, on a website or in a trade magazine. The communication must relate to the recipient’s functions or activities in a business or official capacity.
- Implied consent is time-limited:
- Organizations that have a relationship that existed prior to July 1, 2014, can rely on implied consent for a 3-year transition period (July 1, 2014 to July 1, 2017). Organizations are encouraged to use this period to seek express consent for the continued sending of commercial messages.
- Once the 3-year transitional period expires (July 1, 2017), implied consent will typically be time-limited for a period of 2 years (although in some cases, only 6 months) after the event that starts the relationship (e.g. purchase of a good). For subscriptions or memberships, the period starts on the day the relationship ends.
- Exemptions: No consent is required for:
- B2B - No consent is required to send a commercial message within your own organization, where the message concerns the activities of the organization. No consent is required for B2B communications, as long as it concerns the activities of the recipient organization AND the organizations have a relationship.
- Personal or family relationships - A "personal relationship" is one that exists between individuals. Legal entities, such as corporations, cannot have a personal relationship. Someone who sends a CEM on behalf of a corporation may not claim to have a personal relationship with the recipient.
- Registered charities and Political organizations or candidates where the primary purpose of the communications is to raise funds or seek donations.
For more information on CASL, please contact the MRIA or visit the following resources:
- Government of Canada: www.fightspam.gc.ca
- CRTC: www.crtc.gc.ca/eng/casl-lcap.htm
- Industry Canada: www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00569.html#q14
- Competition Bureau: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03390.html
- Office of the Privacy Commissioner of Canada: www.priv.gc.ca/resource/op-vpel/spam_index_e.asp
Pour tout complément d’information, prière de communiquer avec l’ARIM ou de consulter l’un des sites qui suivent.
- Gouvernement du Canada : http://fightspam.gc.ca/eic/site/030.nsf/fra/accueil
- CRTC : http://www.crtc.gc.ca/fra/lcap-casl.htm
- Industrie Canada : http://www.ic.gc.ca/eic/site/ecic-ceac.nsf/fra/gv00569.html
- Bureau de la concurrence : http://www.bureaudelaconcurrence.gc.ca/eic/site/cb-bc.nsf/fra/03390.html
- Commissariat à la protection de la vie privée du Canada : http://www.priv.gc.ca/resource/op-vpel/spam_index_f.asp
NOTE: The information provided in this section is MRIA's interpretation of the Act, which is based on a number of informed sources, including our staff and government relations adviser; on-going communications with government officials; MRIA's own legal counsel; media reports; and other publically available information provided by the Government of Canada. As business practices may vary, MRIA recommends that members obtain their own legal counsel related to the application of CASL to their internal affairs.