Canadian Lawyer InHouse

june 2014 14 INHOUSE Q U I Z ANSWERS 1 (C) It depends. Consent will be implied if the sender of the CEM has an "existing business relationship" with the recipient that is defi ned to include a business relationship arising from the purchase of products or services in the two years prior to the date on which the CEM is sent. For the fi rst three years under the new law (i.e., until June 30, 2017), consent will be implied without reference to the two-year period, provided that the recipient does not withdraw consent, and provided that the relationship included the exchange of CEMs. The company's contact list of customers and other records should be vetted in order to determine whether the relationship included the exchange of CEMs. If the exercise is not successful, other potential grounds for express or implied consent should be explored. 2 (C) It depends. The question is not whether a person is a "friend" but whether the individuals have a "personal relationship." If so, the CEM is exempt from the form and content requirements of the new anti-spam law (such as an unsubscribe mechanism). A personal relationship exists if the individuals have had direct, voluntary, two-way communications and it would be reasonable to conclude that they have a personal relationship, taking into consideration any relevant factors such as the sharing of interests, experiences, opinions, and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated, or whether the parties have met in person. 3 (B) No. This procedure exposes the company to some risk if the recipient complains and denies that consent was given. Businesses face a reverse onus — the onus of proving consent is on the person who claims that they have consent. According to the CRTC guidelines, a complete and unedited audio recording of a consent, or verifi cation of oral consent by an independent third party, would discharge the onus of proof. A company must establish the standard of proof with which it will be comfortable. A company may choose to seek express written consent in order to avoid risks. 4 (A) Yes. Consent is implied where the recipient has disclosed their address to the sender, has not indicated they do not wish to receive unsolicited commercial messages, and the message is relevant to the recipient's business, role, functions, or duties in a business or offi cial capacity (sometimes dubbed the "business card exemption"). Under these facts, this test would be met. On the other hand, if the sender of the message was promoting the sale of hot tubs for use in the recipient's backyard, this "business card exemption" would not apply. 5 (B) No. You missed something. All requests for consent to CEMs must set out clearly and simply a statement indicating that the person whose consent is sought can withdraw their consent. The web page should be changed before July 1 st . YOUR RANKING? ■ One correct: might be time to brush up ■ Two correct: not bad, but some further work needed ■ Three or four correct: very well done, but not perfect ■ Five correct: excellent A DAILY BLOG OF CANADIAN LEGAL NEWS WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS FEEDS LEGAL POWERED BY Untitled-1 1 14-05-07 11:19 AM

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