Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50160
well. Those expectations will be shaped by this legislation in the future," Willis says. "We're treating compliance very much as a priority, and getting prepared is a lot of work." U.S. companies with Canadian cus- tomers face an additional headache, says Wilson, because CASL applies to any commercial electronic message sent from or received by a computer in Canada, and sets a higher bar for consent than its U.S. equivalent, the 2003 CAN-SPAM Act. "It's difficult for U.S. businesses. Most are very compliance oriented, but they have the additional difficulty of having to locate recipients to confirm they are Canadian, as well as making sure they comply with the law," Wilson says. At the Globe, Willis has established an anti-spam team, with representation from across the company, to educate personnel on the requirements of the new law. They are then tasked with cas- cading the information down through their own departments. "We've found with other legislation that making sure people understand it is really the best defence for ensuring there's no non- compliance in the future," Willis says. The Globe is also conducting an audit of all existing communications the com- pany has with clients and users to iden- tify which relationships meet the strict consent requirements and which raise compliance concerns. At Johnson & Johnson Inc., Andrea Freund, the company's vice president of law, has taken a similar audit-based approach. But Freund says her company and others have been handicapped by uncertainty over when exactly the leg- islation will come into force, and what regulations will come under it. "The problem is since the regulations haven't been finalized, we can't put in place the final processes, training, and implemen- tation plans. The audit itself is a large undertaking, and I think unless the regulations change, there's going to be a significant amount of work still to do for many businesses." After the legislation passed Parlia- ment in 2010, Industry Canada and the Canadian Radio-television and Telecommunications Commission, the bodies tasked with enforcing the law, released draft supplementary regula- tions the following summer. There was hope in the business community that the regulations would narrow the scope of the legislation and provide for exemp- tions, but Alexander Adeyinka, senior regulatory counsel at Rogers Commu- nications, says it didn't live up to expec- tations. "Unfortunately, when the draft regulations came out, frankly they didn't do anything about the concerns that industry mentioned about the scope of the legislation itself," says Adeyinka, who has also been active in the Canadi- an Wireless Telecommunications Asso- ciation's response to the legislation. "In fact, the regulations themselves in our general view went overboard in terms of some of their compliance requirements." As they currently stand, the regu- lations require senders of commercial electronic messages to make requests for trade and public interest organizations making their concerns known, most from critical businesses and industry associations bristling at the compliance burden they will impose. Wally Hill, the vice president of the Canadian Market- ing Association, says his members were particularly disappointed that consents obtained in the past under the Personal Information Protection and Electronic Documents Act would no longer be considered good enough for compliance with CASL. If the requirements are to change, he suggests old lists should be grandfathered to minimize disruption and costs. "Otherwise, companies are put in a position where they have to go out and re-qualify their entire database," he says. Susan Copland, director of the Vancouver-based Investment Industry Association of Canada, says the new They don't want to face up to the fact that you can't e-mail people you don't know. JOHN LAWFORD, Public Interest Advocacy Centre express consent in writing. Consent can be implied where the recipient has had a business relationship with the sender in the last two years. There is also a "busi- ness card exemption" that allows send- ers to use e-mail addresses disclosed in the course of doing business, as long as the recipient does not object to receiving unsolicited messages. Once consent has been obtained, all commercial electronic messages must also comply with form requirements, which means that the name, mailing address, web site, and phone number of the person sending the message, as well as any business on whose behalf they're sending it, are contained in the message. Messages must also have a mechanism that allows recipients to unsubscribe from future messages. The draft regulations attracted a bar- rage of comments, with more than 50 34 • DECEMBER 2011/JANUARY 2012 INHOUSE rules could impede her members from acting on client referrals, and calls the "in-writing" requirement for consent requests "highly impractical" in an increasingly electronic world. "It basi- cally precludes you from using elec- tronic communication to get consent, or even verbal consent over the phone. The reality of business is that commu- nication is instant, and people get impa- tient when they face a two-second delay when they're sending e-mails, so it really doesn't make sense," Copland says. Adeyinka is keen to stress that he, and most of the commenters, support the broad goals of CASL, but want to see more done to combat what he calls its "unintended consequences." He says it's unnecessary for the draft regula- tions to capture innocuous communica- tions such as the text messages Rogers Communications sends to welcome new