More Guidance From CRTC on CASL – It’s Still a Mess

The CRTC recently published a document with some guidance on implied consent under CASL.

The parts about “Can I send CEMs to an email address I find online?”, “How can I prove I have consent?”, and “What records should I be keeping?” show how difficult, if not impossible, it is to comply with CASL in practice.

CASL and its interpretation is so granular and so nuanced that the average business doesn’t stand a chance of getting it consistently right. The email address publication relevance issue, for example, is so fraught with risk that it isn’t worth tempting fate with in most instances. And the level of proof and record keeping that is expected is simply impractical.

In my view CASL does the opposite of what it says it is supposed to do:

3. The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct

(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;

(b) imposes additional costs on businesses and consumers; …

The compliance costs in terms of dollars, time, and exposure to penalties are simply far too high, and it actually impedes “efficiency and optimal use of electronic means to carry out commercial activities”.

 

 

Comments

  1. David Collier-Brown

    I was the techie who implemented the CASL changes for my employer’s web site a year or so ago. Our solicitor gave me a new paragraph for the terms and conditions and I
    1) put it on a “we just changed this” page, with a link to
    2) the T&Cs themselves, and
    3) updated the database so that everyone with a Canadian address was sent to the changed-T&C page, and had to either accept or decline it.

    It was this easy because we’d already been given good advice about changing terms and conditions, and had spent the time and effort to make it that straightforward.

    If you’re not prepared, and if you’re not on an on-line business scenario, I can well image it’s a pain!

    However, if you know you have to get agreement with T&Cs, then you can spend a bit of time now to make it easy later. Add a database column and and if-statement in log-in, and avoid a big wodge of pain later (:-))

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