MEMORANDUM

TO:Tony Thornton

FROM:Naomi Angel

DATE:June 12, 2017

RE:Compliance with Canadian Anti Spam Law

The Canadian Anti Spam Law (CASL) applies to all commercial electronic communications (CEM’s) whether they be about membership, bulletins, committee materials, FENCETECH, meetings or other industry information.  Sending AFA bulletins to a Canadian member’s email address would fall under the definition of CEM.  In order to send these messages, AFA must have some form of consent, express or implied.  You will also have to keep records of the consent.  

There are differing view-points on implied consent under the CASL. Some take the position based on one section of the statute that, as long as someone remains a member of the association, the association still has implied consent, even after July 1.  However, that is inconsistent with another section of the statute which provides that implied consent ceases as of July 1, 2017.  We are advising our clients to take the more reliable approach and obtain express consent from their Canadian members.  Also, once you have obtained express consent, you do not have to "renew" consent. You will be able to email the recipient about anything, including industry information, membership, dues, until consent is affirmatively withdrawn.

How to obtain express consent:

-Send an email to Canadian recipients with a clear and concise description of the purpose which is obtaining consent under CASL.

-Include a brief description of the type of messages you will be sending.

-Include a statement that the recipient may unsubscribe at any time.

-Include AFA’s name, mailing address, phone, email, and website URL.

-Be sure the recipient can answer affirmatively, for example checking a box or responding affirmatively.  Passive acceptance is NOT express consent.

Get express consent.

Get express consent at the outset by including a checkbox on the membership application.

One interpretation of the statute is that CASL permits you to send CEM’s to anyone who has an 

existing non-business relationship (such as your members) so long as the recipient was a member within the 2 year period immediately before the day the email was sent.  Therefore, as long as your members have a current membership, or have not cancelled two years before the date of the email, they may be deemed to have given implied consent to receiving any CEM’s.  The problem with relying on implied consent is that it must be monitored.  If a member cancels and you send an email to them after two years, you could be subject to penalties.  This is why we recommend obtaining express consent.

When contracting with a third party (Multiview, Constant Contact, Surveymonkey, etc.) to distribute CEM’s on your behalf, carefully check the contract. There should be a provision that requires the third party sender to comply with CASL.  They should also notify you of any "unsubscribe" requests even if they are processing the request on your behalf.  Finally, be sure the third party provider is maintaining records of CASL compliance.

Please let us know if you have any questions.