Is Your Agency Ready for Canada’s Anti-Spam Law?
by Coralie Belman and Marilee Crocker /Canadian travel agencies that fail to comply with the nation’s strict new anti-spam law could face legal action starting July 1. That’s the effective date for most provisions of a law that aims to protect Canada’s consumers from spam, phishing and other electronic threats.
Approved in December 2010, Canada's anti-spam legislation (CASL) prohibits businesses from sending unsolicited “commercial electronic messages.”
What this means is that businesses – including travel agents – must obtain permission from intended recipients before sending them commercial electronic communications, including emails, texts, e-newsletters, faxes, instant messaging, and messages sent via social media.
For travel agencies, it’s important to understand two key components of the law: 1) the types of communications and content it governs and 2) the types of consent that businesses must obtain.
Types of communications & content
According to a government website, the anti-spam law applies to electronic telecommunications containing any content that “encourages participation in a commercial activity.”
Travel agency communications such as electronic newsletters and supplier advertising and offers forwarded by email would be considered commercial electronic messages (CEMs) and therefore subject to the law, according to the digital content and marketing firm Travelwatch.
A white paper circulated this week by Travelwatch states that these “commonly used travel industry communication methods . . . would clearly be considered CEM.”
In addition, Travelwatch said, “any content that includes contact info and hyperlinks to content on a website . . . could be interpreted as encouraging participation in commercial activity.”
Travelwatch emphasized that it doesn’t matter “whether the intent is to profit or not, what is key, is that it is of a commercial nature.” To be safe, travel sellers should “treat every electronic message sent in connection with your business as a CEM,” Travelwatch advised.
Permission required
The consent provision of the law stipulates that businesses may only send commercial electronic communications to individuals who have given them permission to do so.
According to the government website, senders must:
• obtain consent from the recipient before sending the message
• include information that identifies the sender
• enable the recipient to withdraw consent
There are two kinds of consent allowed – “express” or “implied” consent.
As of July 1, businesses, including independent travel sellers, must have either type of consent on record for all customers with whom it communicates electronically regarding commercial matters.
Implied consent
“Implied consent” refers to situations where a business or non-business relationship already exists between the sender and recipient. For example, a consumer has disclosed his or her email address to a travel agency without indicating that they don’t wish to receive commercial communications via email.
Implied consent expires after a certain time period depending on the situation – for instance, two years after a client has purchased goods or services including travel, or six months after a consumer has inquired about goods or services.
Express consent
Under the “express consent” option, a business specifically asks the consumer for permission to send them email or other electronic communications.
“The new regulation requires a positive action, clicking an opt-in box,” noted attorney Jennifer Babe, a Toronto-based associate with the law firm Miller Thomson.
The law “is very clear on two points – that consent cannot be bundled in with terms and conditions, nor can it be passive consent, meaning that the consumer has to un-click a consent box,” Babe said, during a presentation about the law hosted earlier this year by the Guelph (Ontario) Chamber of Commerce.
Burden of proof
Travel agencies should record when and how consent was obtained, especially if that consent was verbal. As Babe explained, the burden of “due diligence for consent rests with the sender” of the email.
There is a three-year transition period during which a business can convert an implied consent to an express consent for consumers in its database.
But after July 1 this conversion cannot be handled via email or other electronic communications. That’s because an email or other electronic communication requesting consent would be considered a CEM, according to Travelwatch.
The implied consent and “transitional” relationships portions of the law are “complex,” Travelwatch warned.
Consequences
Businesses found in violation of the law may be subject to monetary penalties or criminal sanctions.
Compared to similar legislation in other countries, Canada’s anti-spam law is “the most sweeping, hardest to comply with and contains the most nasty penalties,” said Babe.