Thursday, August 6, 2020

Canada’s Anti-SPAM Law Private Right of Action Approaching

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Richard B. Newmanhttp://www.hinchnewman.com
Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

The conclusion of the three year transition period for Canada’s Anti-SPAM law is rapidly approaching. Provisions pertaining to a “private right of action” will soon become effective.

The CAN-SPAM Act does not provide for a private right of action and does not regulate text messages.

Conversely, any individual that receives an unsolicited commercial electronic message (e.g., email, text message, instant message and direct social media message) can soon seek damages of up to $200, per CEM, in addition to the staggering monetary penalties that the Canadian Radio-Television and Telecommunications Commission has the power to levy.

Now, more than ever, it is imperative that advertisers and marketers that engage Canadian consumers via CEMs consult with an experienced advertising compliance and defense lawyer to critically consider CASL’s requirements and risks.

The foregoing includes, without limitation, obtaining express consent, disclosing sender identification information, considering data transfer restrictions, implementing effective unsubscribe mechanisms and maintaining proper records.

An issue often overlooked is that, with limited exceptions, CASL applies to Canadian commercial email marketers, as well as marketers sending CEMs into Canada.

The implied consent transition period comes to an end on July 1, 2017.

Marketers will soon require express consent to send CEMs or must fall within a strictly defined implied consent category, such as an existing business relationship or inquiry.

Contact Hinch Newman LLP if your company places or intends to place calls, or delivers or intends to deliver text messages or emails to Canadian residents.

ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777.

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