Fortifying the CASL: Database Compliance Checklist

With CASL, it's important that you have up-to-date lists, not just for new contacts, but also for the lists you already have established. We have endeavored to give you as much of the generally applied information as possible in the following checklist to get your current database compliant. Please remember that this is not legal advice, and that there are gray areas that should be most certainly taken up with someone who has legal expertise and knowledge on this subject.

Do you have express consent under CASL requirements?

• Remember that the customer needs to know what they are consenting to, and on whose behalf the message is being sent.

• If you have consent, can you prove it? The onus is on you to prove it, so having a list of double-opt ins isn't enough. You have to have records of that form processing. If you have express consent but lack proof, renewing that consent is necessary.

If the answer to the question of express consent, and the subsequent proof query is yes to both, then you have express consent that is valid under the new legislation.

Do you have implied consent under CASL?

• Do you have an existing business relationship that exists prior to CASL coming into force?

  • The intended recipient has made a purchase, accepted a business opportunity, or bartered for something from the sender at any point in the past.
  • The intended recipient has been party to a written contract with the sender at any time in the past.
  • The intended recipient has made an inquiry or application about any of the items referred to in the first of these three points.

If the answer to any of these is yes, you have implied consent until July 1, 2017.

• Do you have an existing business relationship that exists after CASL comes into force?

  • The intended recipient has made a purchase, accepted a business opportunity, or bartered for something in the past 24 months.
  • The recipient has been party to a written contract with the sender in the past 24 months.
  • The recipient made an inquiry or application with regard to any of the items in the first of these three options in the past 6 months.

If yes to either of the first two, then you have the remainder of those 24 months to contact them. If the answer is yes to the last one only, then you have 6 months.

• Do you have an existing non-business relationship that came into play prior to CASL coming into force?

• Has the recipient made a gift or donation to, volunteered for, or attended a meeting organized by the sender any time in the past, and the sender is a registered charity, political party or organization, or a political candidate for publicly elected office?
• Has the recipient held a membership any time in the past in the sender organization, where the sender is a club, association or voluntary organization?

If the answer to either of those two is yes, you have implied consent until July 1, 2017.

• Do you have an existing non-business relationship established after CASL comes into force?

  • Has the recipient made a gift or donation to, volunteered for, or attended a meeting organized by the sender in the past 24 months, and is the sender a registered charity, political party or organization, or a political candidate for publicly elected office?
  • Has the recipient has had a membership in the past 24 months in the sender organization, where the sender is a club, association or voluntary organization?

If the answer to either of these is yes, you have implied consent for 24 months. Inquiries related to the activities in these points would also give you a 6 month implied consent, although it is best to check with a lawyer.

It's also worth noting that you have implied consent if the intended recipient has conspicuously published their electronic address and not followed that with a message asking that unsolicited messages be withheld and the messages are related to the professional or official capacity of the recipient. In addition, if they disclose their address to you, again without asking not to receive unsolicited messages, and the message is related to their professional and official capacity you have implied consent, although in both of these cases, express consent would be ideal.

If you have no consent, but are not sending commercial messages, you do not need to receive consent. For more information about CASL, you can check out our blog, and also visit our CASL page. Good luck, and always err on the side of caution until you have spoken to a lawyer about your messaging habits.