Enforcement Advisory - Notice for businesses and individuals on how to keep records of consent
Commission staff has published this advisory, directed to businesses and individuals in Canada sending commercial electronic messages (CEMs) as part of their commercial activities.
Commission staff notes that under section 13 of Canada’s anti-spam legislation (CASL), the onus is on the person who alleges they have consent to send a CEM (typically, the person who sends the CEM) to prove that they have proper consent, either implied or express, to send each message. Commission staff has observed that some businesses and individuals are unable to prove they have obtained consent before sending CEMs. The purpose of this Enforcement Advisory is to remind those involved, including those who send CEMs, of the requirements under CASL pertaining to record keeping.
How can the sender keep track of consent?
The onus of proving consent always remains with the person(s) sending, causing or permitting the sending of CEMs. This is the case even if the sender is relying on an existing business or non-business relationship that was created prior and post July 1, 2014 (the implementation date of CASL).
As such, 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
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
For more information on record keeping, see the CRTC's guidance on corporate compliance programs.
Where can I learn more about consent and record keeping?
To promote compliance, Commission staff has issued guidance on consent and how to prove consent.
For more information on CASL requirements and prohibitions, please see the Commission’s website for guidance material.
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