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Ultimate Vision Combines Businesses

As of January 1, 2015, Ultimate Vision Web Design & Consulting and Ultimate Vision Computers have merged into one business, Ultimate Vision Web & IT Solutions.

Exceptional service and product offerings will still be the cornerstone of Ultimate Vision for years to come.

Please enjoy the new website and be on the lookout for upcoming news and features.

Bill C-28 – Canada’s Anti-spam Law (PART 6) – Other Details

In the first five posts on Bill C-28 I have covered an overview of the upcoming law, consent, exemptions, other important facts, and penalties. I will continue with other details and further expansion on some points from earlier posts.

Commercial Electronic Message

The basic principle of the Canada Anti-Spam Law (CASL) states you are not allowed to send a “commercial electronic message” to anyone unless they have provided consent to receive it. Of course there are exemptions which were discussed in part 3 of the series. Also, the definitions of electronic message and commercial are very broad under the law. The voice part of electronic message is already covered under the Do Not Call rules. Commercial is defined as; any offer to transact any product or service or an interest in land, offer an economic opportunity (including gambling) or to promote any of these activities.

Implied Consent

Further to part 2 of the blog series on implied consent. In some cases where a previous relationship exists, implied consent will be granted.  Some cases include the exchange of business cards, verbal requests in person or over the phone, fishbowl collections where consent was not asked, and signup forms where no consent was asked. In these and similar cases, you will have a period of two years to get express consent from the individual, which means they will have to opt-in on your mailing list within two years or else you have to remove them. Failure to remove means you are in violation of the law.

Warrant

One interesting part of the CASL involves warrants. If the CRTC has just cause to come on your premises to verify if you are violating the law, they can obtain a warrant from a justice of the peace. This warrant is pretty sweeping as they can examine anything on location, use any computer system, copy any document, prohibit or limit access to the premises, to name the most important facts.

Exemptions

Some further examples of exemptions are charities and political parties that do not sell a product, people who have made a donation in the last 18 months, performed volunteer work or were part of the organization in the last 18 months.

Most of the important items of CASL have been covered in all six parts of my series. Hopefully you have gained some insight and will research the topic further if you need more details in an area that might affect the way you email clients. It is best to be informed!

Bill C-28 – Canada’s Anti-spam Law (PART 5) – Penalties

In case you care to brushoff the new Anti-spam Law, taking a look at the penalties involved might make you think otherwise. The CRTC is the main regulatory body that is in charge of enforcing this new law, the regulatory body that will be receiving complaints to act upon.  The CRTC also has been given numerous powers, including the ability to serve telecommunications providers for the preservation of data for their investigation.

All penalties are monetary as they are meant to enforce the new law, not to punish.

The following factors are taken into consideration when determining the amount of the penalty:1

  • the purpose of the penalty;
  • the nature and scope of the violation;
  • the person’s history with respect to any previous violation under this Act
  • the person’s history with respect to any previous undertaking
  • any financial benefit that the person obtained from the commission of the violation;
  • the person’s ability to pay the penalty;
  • whether the person has voluntarily paid compensation to a person affected by the violation;

The maximum penalty for an individual is $1,000,000 per violation and for a business $10,000,000 per violation. These penalties should not be taken lightly.

In order to not worry about such penalties above, it is in your best interest to understand this new law and conform to it. Make sure you get people to opt-in on your mailing list now, and keep proof they opted-in. Make sure you do not send out a “commercial message” unless it conforms to all the rules of implied or express consent.

Government laws may seem like a pain, and an even bigger pain to read and fully understand, but you must not brush them off. Sending an electronic message soliciting any kind of business may violate the new law. It only takes one complaint to the CRTC before the legal mess begins.

Up next: Other Details (PART 6)

1Government of Canada http://laws-lois.justice.gc.ca/eng/acts/E-1.6/page-8.html#h-12

Bill C-28 – Canada’s Anti-spam Law (PART 4) – Other Important Facts

There are a few other important facts that need to be covered under Bill C-28, items that are important to keep your email mailing list compliant under the new Canada Anti-Spam Law (CASL).

Any email list that currently conforms to PIPEDA (Personal Information Protection and Electronic Documents Act), will not conform to CASL due to insufficient opt-in consents. As of July 1st, 2014 you must have the name, email address, date and time that the user has opted-in on your email list. This proof is necessary in case anyone lodges a complaint to the CRTC. In most cases, you will have to get everyone on your email list to opt-in again. If you are maintaining a manual list, you will have to keep every email that people send saying yes to adding them to your email list. If you are using a program such as Mailchimp, when someone fills in the form you create, let’s say “Subscribe to my Newsletter Mailing List”, when they fill out and submit the form, Mailchimp automatically records the date and time they opted-in.

It will also be critical to keep your email mailing list up-to-date at all times after July 1st, 2014.

“Organizations that maintain e-mail contact lists will need to remove names from the list at the 2 year-post transaction or 6 month post-inquiry point, unless express consent has also been obtained from recipients.”1

There will be a 3 year transition period for any communications that fall under the implied consent portion of the law, but it is best to just get your list in order as soon as possible. This all means that if you did business with an individual or company, after 6 months if they were not interested in your commercial activies you must remove them from your list. If you did business with them and 2 years go by with no other business interactions, you must remove them from your list. Only if they provide consent to stay on your list, will you be able to do so.

One other reason to get your email mailing list in order before July 1st, 2014, is that sending everyone an email after this time to opt-in may violate the new law. If this is the case, you would be forced to delete your entire list and start over.

All of the items above are very crucial and should not be taken lightly. If you are in the process of setting up a monthly newsletter or any other kind of list for commercial purposes, conform to the law now. It will make it a lot easier on yourself. If you have a current list, you better start thinking about getting consent from everyone on your list.

Up next Penalties (PART 5)

1 Sharon E. Groom, McMillan LLP

Bill C-28 – Canada’s Anti-spam Law (PART 3) – Exemptions

So far in parts one and two of my series on Bill C-28, which becomes law on July 1st, 2014, I have discussed the new law as well as consent under the law. Now, I will be discussing the various exemptions under the upcoming new law. Just to refresh everyone, a commercial electronic message qualifies as one if its primary purpose encourages participation in a commercial activity. Although lengthy, here is a list of exemptions under the upcoming new law.

  • commercial electronic messages within a business sent by an employee, representative, contractor or franchisee of the organization and that concern the activities of the organization;
  • commercial electronic messages between businesses that have an ongoing business relationship, and that are sent by employees, representatives, contractors or franchisees of the organizations concerning the activities of the organizations or the person’s role;
  • commercial electronic messages from friends or family;
  • commercial electronic messages to a business where it is an inquiry or application related to that business;
  • commercial electronic messages from a business responding to inquiries, requests, complaints or other solicitations;
  • commercial electronic messages that are sent to satisfy a legal or juridical obligation;
  • commercial electronic messages sent on an electronic messaging service where consent (implied or express) has been received and the unsubscribe mechanism is on the user interface;
  • commercial electronic messages sent by a registered charity where the primary purpose of the message is fundraising;
  • commercial electronic messages sent by a political party/organization/candidate where the primary purpose is soliciting a contribution;
  • in addition, there is a one-time exemption for a commercial electronic message sent to someone to whom the sender has been referred by a friend or business relation of the recipient, although such a communication still has to comply with the content requirements.1

Non-profits have a challenge and must distinguish commercial and non-commercial messages. Non-profits are exempt from the law if their commercial message seeks donations or contributions. Any other commercial electronic message or non-commercial electronic message not seeking donations or contributions then falls under consent rules like every other person or business.

For the most part, in order to make sure you are in compliance as of July 1st, make sure people opt-in to your mailing list. If you definitely know you fall into one of the exemptions above, make sure your commercial electronic message is clear and does not allow for another interpretation that can be considered outside the exemption qualifications.

Up next: PART 4 – Other Important Facts

1 Sharon E. Groom, McMillan LLP

Bill C-28 – Canada’s Anti-spam Law (PART 2) – Consent

In the first part of my series on Bill C-28, Canada’s new Anti-Spam Law, I talked about the Anti-Spam law itself and briefly touched on penalties. Today I will be discussing consent.

Most people nowadays put people on their email mailing list and provide a method for them to opt-out, usually in the form of an unsubscribe link. With the new Anti-Spam law this will no longer be an option for getting people on your list. There are two types of consent, implied and express. Implied consent was just described above, giving the user the ability to opt-out. Express consent is when people must opt-in, which is mandatory in most cases with this new law. Furthermore, when you ask someone to opt-in, you must clearly state the purposes why you are asking them to opt-in or “sign-up” on your list.

The majority of the time as of July 1st, people will have to opt-in on your email mailing list, but there are a few instances where consent is already implied. They are:

  1. Commercial electronic messages where the parties have an existing business or non-business relationship that has been active in the last 2 years;
  2. Commercial electronic messages where the sender has received an inquiry or application within the last 6 months from the recipient in respect of a potential transaction or other defined business or non-business opportunity;
  3. Commercial electronic messages where the recipient has provided or published his or her electronic address without any restriction, and the message relates to the person’s job or business1

Now that you know the difference between implied and express consent, there are a couple other important facts that need to be addressed. First, when someone opts into your mailing list, you must have proof of the person’s name, email address, date and time they opted-in. This is necessary in case someone were to file a complaint with the CRTC against you. Second, most email lists today conform with the Personal Information Protection and Electronic Documents Act (“PIPEDA”), but they do not conform to the new Anti-spam law due to lack of consent. Before July 1st you must get everyone on your list to opt-in and have proof they opted-in, not you adding them to your list.

This is a lot of critical information to absorb, but very necessary to know and understand. I can see a lot of people and businesses after July 1st not knowing this new law exists and will still be doing their email mailing list creation the wrong way.

Up next: PART 3 – Exemptions and Non-Profits

1 Sharon E. Groom, McMillan LLP

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