The CRTC has recently published some additional guidance on retaining evidence of CASL consents.
Under CASL, the person sending (or permitting to send) the commercial electronic message (CEM) has the onus of proving consent.
If the sender is relying on an exception to the consent requirement, such as an existing business or non-business relationship, the sender must be able to prove the exception.
As such, CRTC notes good record-keeping practices can help the sender:
- identify potential non-compliance issues
- investigate and respond to consumer complaints
- identify the need for corrective actions
- demonstrate that these corrective actions were implemented
- establish a due diligence defense in the case of a violation of CASL
The guidance says that senders of commercial electronic message should consider keeping a hard copy or an electronic record of, among others:
- all evidence of express and implied consent (e.g. audio recordings, copies of signed consent forms, completed electronic forms) from consumers who agree to receive CEMs
- documented methods through which consent was collected
- policies and procedures regarding CASL compliance
- all unsubscribe requests and resulting actions
In BC, for example, a relevant consideration may also be the Electronic Transactions Act. This may be pertinent to electronic records and the maintenance of an electonic record of consent in a system rather than a form. The Act, amongst other things, confirms that the requirement of an original record is satisfied by the retention of the record in electronic form if there exists a reliable assurance as to the integrity of the record.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
