CASL at 10 – Terminology

This is part one of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of full enforcement in 2017. Crosslinks will be added as new parts go up.

Core resources:

The Act

Enforcement Actions Table (CASL selected)

CASL has been a subject of professional and personal interest to me for some time. I began working in higher ed marketing at around the same time as the legislation was introduced, and well in the groove when it came into full force. It made pretty much everyone in marketing — whether they were in for-profit, not-for-profit or charitable work — pretty anxious.

Almost 10 years later, it feels like a good time to see how it’s all playing out. I’ve been working on this at a fairly relaxed pace, so it’s conceivable that I might wrap this up for its 10th anniversary at this point.

Even as somebody who was passingly familiar with CASL for professional reasons going into this, I rapidly ran into a pretty fair-sized lexicon of terms and acronyms. Before we get into the meat of it, let’s get some acronyms and terms out of the way.

CRTC: The Canadian Radio-television and Telecommunications Commission. Responsible for broadcasting, Internet, and telephony in Canada. Very eager to point out that they “operate at arm’s length from the federal government” – it’s practically the tag line for the whole organization on their home page.¹

CASL: Canada’s Anti-Spam Legislation. The subject of these short essays. It was introduced in 2014, with a “transitional period” to July 1, 2017, when it came into full force.

CEM: Commercial electronic messages. Pretty much any electronic message (text, email) that promotes a product or service, with some clearly defined exceptions. We’ll unpack this more in the next post.

Investigative powers: Commission staff, who are persons designated by the Commission to conduct investigations, may use the following powers to investigate possible violations under CASL. These presumably lead to actions (see below).

Notice to Produce (NTP) – a notice served on a person requiring them to produce data, information or documents in their possession or control (additional information is available in section 17 of CASL);
Preservation Demand – a demand served on a telecommunications service provider requiring it to preserve transmission data in that is in or comes into its possession or control (additional information is available in section 15 of CASL); and
Search Warrant – a judicially pre-authorized warrant that authorizes designated persons to enter a place (business or dwelling-house) to examine, copy or remove documents or things (additional information is available in section 19 of CASL). ²

Action types: measures that CASL / the CRTC uses to reinforce compliance with CASL (as well as Unsolicited Telecommunications Rules (UTR) and the Voter Contract Registry (VTR)). Particularly pertinent for CASL:

Citation: a letter outlining alleged violations and an “opportunity to clarify”. Other than publishing the citation 30 days after issuance (absent a valid defence), there don’t seem to be any follow-on penalties to a citation. There’s only been one citation in CASL history to date (Orange Link Inc., details not available online).
Notice of Violation: sets out alleged violations, and may include an AMP (see below).
Compliance and Enforcement Decision (“Decision”): official decisions following the review of a Notice of Violation, Notice to Produce or Preservation Demand.
Undertaking: an agreement between a violating entity and Commission staff defining compliance obligations; can also include a payment amount.
AMP: Administrative Monetary Penalty. These are part of a Notice of Violation; a civil penalty imposed by a regulator. They can be appealed to the commission – this gets important later.

In the next post, we’ll start looking more at the early days of CASL, its remit governing Commercial Electronic Messages (CEMs), and what exactly CASL is, and is not, meant to enforce. It wasn’t quite what I always assumed it was; this might be true for you as well.

1
I can’t find any other federal commissions that do this. The Canadian Nuclear Safety Commission doesn’t do it, the Human Rights Commission doesn’t do it, the National Capital Commission doesn’t do it, the Truth and Reconciliation Commission didn’t do it… I could go on. I don’t want to sound conspiratorial out of the gate, but given how many criticisms the CRTC has seen for being connected to big telco companies, it’s interesting that the first words out of their virtual mouths are “we aren’t the government, guys!”
2
Verbatim from the CASL FAQ at https://crtc.gc.ca/eng/com500/faq500.htm/

By mattshepherd