Executive Director’s Message
What does Canada’s Anti-Spam Law mean for CIQS?
C
anada’s Anti-Spam Law (CASL) came into force on July 1, 2014. You have been asking us - What impact does this have on CIQS? CASL applies to the sending or the accessing of commercial electronic messages (CEMs) on a computer system located in Canada. A commercial electronic message is an electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation for profit. CASL has both consent requirements (express or implied) and content requirements. Consent Requirements: Pursuant to CASL, there can be express or implied consent. One form of implied consent, known as “Existing Non-Business Relationship,” covers CEMs sent between a “Club, association or volunteer organization” and its “members,” (both defined within CASL Regulations), provided the CEM was sent to a current member, or within two-years of the cessation of such membership. While we initially anticipated relying on this form of consent, we have been advised that our “Designation Holders” are not “members” within the legal sense, and therefore, we cannot rely on this form of implied consent (i.e. pursuant to our by-laws the affiliated associations are our members).
That said, we have been advised by our legal counsel that we can rely on another form of implied consent known as “Existing Business Relationship.” On the basis that Designation Holders pay a fee to CIQS in exchange for a product/ service (i.e. right to use the intellectual property of CIQS), CIQS has the implied consent of Designation Holders to send CEMs for a period of two years from (i) the date of their last purchase/renewal or (ii) from the date the account terminates, if the relationship involves the ongoing use of services under an account. Despite the two year implied term stated above, under CASL, there is a transition period whereby consent will be implied for a period of three years from the date of July 1, 2014, if (i) there is an Existing Business Relationship or Existing Non-Business Relationship between the sender and recipient of the CEM; and (ii) the relationship between the sender and recipient consists of communication between them of CEMs. Therefore, in order for CIQS to rely on this three year implied consent, it must have sent CEMs to its Designation Holders at some point prior to July 1, 2014, otherwise, it must comply with the two year timeframe set out above. CIQS can rely upon this form of implied consent until a Designation Holder withdraws his/her consent (i.e. via sending an unsubscribe request).
Content Requirements: In addition to consent requirements, CASL’s regulations include content requirements which consist of identification and unsubscribe requirements. Content requirements include: (1) name by which the person sending the message carries on business (if different from their name, if not, the name of the person) [Note that ‘person’ does not only refer to an individual, and can include a corporation or organization, therefore, including CIQS full name in the CEM is sufficient], (2) the mailing address and either a telephone number, email or web address of the sender of the CEM and (3) an unsubscribe mechanism, which must be available and functional for at least 60 business days after sending the CEM, and to the extent a recipient of the CEM chooses to unsubscribe, his/her unsubscribe request must be effected within 10 business days. CIQS does have an ‘unsubscribe’ function on all our eblast messages to Designation Holders and our messages clearly identify who the eblast is coming from (i.e. full name, mailing address, phone number, etc.), therefore, CIQS is in compliance with the “content requirements” of CASL.
We have been advised by our legal counsel that we can rely on another form of implied consent known as “Existing Business Relationship.” 6 | CONSTRUCTION ECONOMIST | www.ciqs.org | Summer 2014
Lois Metcalfe
