Over the past two months the ESPC, in collaboration with Shaun Brown of nNovation LLP, made a number of headways in lobbying Canadian regulators on behalf of industry. Most notably, on Feb 25 the ESPC will sit down with the principal regulator responsible for interpreting and enforcing the law, the CRTC, to discuss a number of key concerns with the CRTC’s interpretation of the law.
The ESPC’s major talking points will cover the following important issues:
- Compliance triggers. The CRTC regulations are unclear at which point a message becomes ‘commercial’ under CASL. The ESPC will focus on a continuum of different messages which should not be ”‘commercial’ under the Act as currently interpreted by the CRTC.
Trenchline Note: According to CRTC regs, even including a URL, company logo or slogan will render the message ‘commercial’. We are also asking the CRTC consider the FTC’s Primary Purpose Test as a practical way to resolve ‘commercial’ vs ‘transactional’ issues
- Sending on behalf of another. The CRTC regulations consider the person situated between the sender and recipient (the facilitator) exempt from needing to be identified under the presumption that service providers have no hand in the design of email content or the selection of email recipients. This is certainly not the case as many facilitators like CheetahMail have an active role in the design and segmentation process.
Trenchline Note: This exemption must be broadened to include full service facilitators with the understanding that everything is done at the direction of the client and with their ultimate sign-off.
- Cookies. CASL coverage creates a lot of risk for marketers b/c we don’t know how the CRTC will treat the fact that CASL inadvertently covers cookies. By inferring that a cookie is a “computer program” covered under the law, marketers may bel be burdened with an EU ‘Cookie Directive’-style opt-in regime. Just as troubling is the private right of action offered to Canadians under the law.
Trenchline Note: The ESPC wants to argue that cookies are not computer programs covered under CASL in the context of online advertising, nor intended to replace current digital tracking self-regulatory regimes, or the regulatory guidance reflective of the UK ICO.
To understand the context of the discussion, we need to understand that the CRTC has taken a hard-line position on it’s interpretation of CASL, particularly the express (opt-in) consent requirement. Despite this stance, the CRTC is willing to listen to industry concerns and is receptive to the ESPC.