CASL

Canada's Anti-Spam Legislation (CASL) comes into force on July 1, 2014!

Please contact your Account Management Representative(s) to get started as DealerMine is committed to doing its part to fight unwanted spam by implementing:  

• • a customized "Consent Disclaimer" complying with CASL guidelines and regulations.

  • a "Fetch" function to target those customers where "consent" is required.

  • "OptIn Request Form" providing customers the opportunity to "Opt-In/Out" from future Commercial Electronic Messages (CEM).

  • "Unsubscribe" link on outgoing email(s), giving customers the ability to manage CEM preferences.

  • "Reporting", whereby DealerMine will track Opt-In, Opt-Out, Unsubscribes and auto-mated "Turned Off" based upon the parameters of "implied" consent.

CASL OVERVIEW

What is a Commercial Electronic Message (CEM)?

A Commercial Electronic Message (CEM) is an electronic message that you send in order to get the recipient to engage in commercial activity, even if that is just one of the purposes of the message. Communication such as telephone calls and letters are not commercial electronic messages and are subject to different regulations, though SMS and other text messages would be subject to an Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23, otherwise known as Canada`s Anti-Spam Law (“CASL”).

If you’re not sure whether the email or text you wish to send is commercial, ask yourself the following questions:

• 1. Does the message include any offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land (e.g. notices of sales events, reminders to get vehicles serviced)? 

1. Does the message include any offers to provide a business, investment or gaming opportunity to the recipient? 

2. Does the message promote a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so (advertising messages promoting positive reputation and/or sales numbers of dealership owner or sales team)

If the answer to any of these questions is yes, your message is a CEM.

Exceptions

The following types of messages will not be considered a CEM in the meaning of CASL, as long as the message is only for one or more of these purposes:

• 1. providing a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent; (e.g. Service / Body Shop quote or estimate, purchase price of a vehicle, etc).

  2. facilitating, completing or confirming a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent; (I.e. Appointment Confirmation, No-Show) 

  3. providing warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased; 

  4. providing notification of factual information about:  

     1.  

• • • the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or 

    • the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent; 

    •  

• 5. providing information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled; 

  6. delivering a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent (I.e. Special Order Part(s)).

Sending CEMs

In order to send out a CEM without infringing CASL, you’ll need three things:  

• 1. Consent from the recipient 

  2. Your business’s identification information 

  3. A unsubscribe system for the recipient to prevent future messages if they do not want to receive them   

Consent

There are two kinds of consent, “express” and “implied”.  

Express Consent

Express consent is where the customer gives you their consent to receive the CEMs. Express consent is the clearest and strongest kind of consent a business can have when dealing with CASL, and if you can get it you should.  

In DealerMine - in the customer contact screen a user can turn on Express Consent, if a customer has given them permission.  This will allow the dealership to contact this customer electronically if it's been over 18 months since the last business transaction.

You can receive express consent from a customer verbally or in writing, but written consent is preferable. If there is any dispute later about whether the customer gave you consent, you will be the one who has to prove that you received consent, and a signed document would be important evidence of the consent.

When you get written consent from the customer, you need to make it clear what it is that the customer has consented to, and cannot simply bury it in the text of the terms and conditions. The customer needs to give specific consent, and any form used for this purpose should include a separate tick box for the customer to check off. It is not acceptable to put the consent in a pre-checked box on the form, because the default setting would be for the customer to consent. The form also needs to be clear as to which person or business is getting consent from the customer.

Implied Consent

Implied consent is where the recipient has not given the sender consent to send CEMs, but the law presumes they have given consent because of their relationship to the sender.  

The first example of implied consent is where the recipient has disclosed or conspicuously published the address where the sender sends the CEMs, the recipient has not indicated it does not want unsolicited commercial messages sent to that address, and the CEM is relevant to the recipient based on their business, role or duties in a business capacity. This exception mostly deals with business-to-business CEMs. 

The second relevant example of implied consent is when the recipient has an existing business relationship at the time the sender sends the CEM, provided that the recipient has not already informed the sender that they do not wish to receive unsolicited commercial messages.  

A person with an existing business relationship with the sender could be any of the following:

• 1. A person who purchased or leased a product, goods, a service, land or an interest or right in land from the sender within the two year period before the message was sent; 

  2. A person who has made an inquiry or application in connection with the purchase or lease of product, goods, a service, land or an interest or right in land from the sender within the six month period before the message was sent; or

  3. A person who has a written contract with the sender that is in effect at the time the message was sent (or which terminated within the two year period before it was sent), if the contract does not involve the purchase or lease of product, goods, a service, land or an interest or right in land from the sender.  

Identification Information

The sender must provide its identity and contact information in the CEM, as well as the information of any person on whose behalf the sender is contacting the recipient.  

If it is not practical to attach all the information in the CEM (as in SMS or other messages with limited character count), it is sufficient to provide a clear and prominent link to a website in the CEM that will provide that information, as long as the website is free for the recipient. The contact information must include the mailing address of the business, which must be valid for at least 60 days after the message is sent. If you are sending on behalf of a business that is relocating within 60 days of the date of the message, you must provide the new address. 

Unsubscribe Function

A valid and compliant CEM must contain an unsubscribe function that will allow the recipient to opt out of the messages. A compliant unsubscribe function must be something the recipient can do without difficulty or delay, and must be simple, quick, and easy for the recipient to use.  

One example of a valid unsubscribe function is placing a link in a CEM email that will allow the recipient to go to a website and unsubscribe. In the case of CEMs via text messaging, the recipient could have the option of texting STOP or UNSUBSCRIBE to the sender or going to a link provided and unsubscribing in the same way as an email user.

It is a good idea to include an Unsubscribe function in all electronic messages, including those that fall outside CASL.

HOW DEALERMINE COMPLIES 

Implied Consent Verification

For those customers who have yet to “express” consent DealerMine will rely on our nightly process to follow the rules of “implied” consent. Whereby, if a user falls outside of the following criteria they will be “Turned Off” within DealerMine for electronic messaging until they fall back within the confines of the “two year” business relationship or “6 month” inquiry.

An existing business relationship exists where the sender and recipient have engaged in certain specified types of business together in the: (a) "Two years" preceding the date on which the CEM is sent (for example, a purchase or lease of a product, or entering into or continuing a written contract) or (b) where the recipient of the CEM has made an inquiry to the sender in the previous six months.

Unsubscribe Mechanism

A unsubscribe link will be added to each outgoing email from DealerMine whereby DealerMine will comply within 10 business days of the request as legislated.

Sample "Unsubscribe Message"

If you do not wish to receive electronic messages from <-CompanyName-> in the future, please <-unsubscribe->. Please be advised that this may restrict our ability to send messages to you in the future.

When unsubscribing customers will have the ability to manage their Commercial Electronic Message (CEM) preferences:  

• • Email: Service Reminders, Customer Surveys, Sales Follow-ups, Promotional Offers.

  • Or Unsubscribe from “All” electronic communications.

Reporting

DealerMine will provide the ability to track those customers who have Opted-In, Opted-Out and Unsubscribed via the following reporting tools:

Fetch 

• • Function “OptIn” = Yes/No/NA

  • Function “UnsubscribedSince” = Yes/No/NA

Contact Analysis Report (User Accounts)  

• • CASL (Opt-In / Opt-Out) 

  • CONSUMER (Unsubscribe(s))

*If required, this data can be exported to update other 3rd Party applications not integrated with the DealerMine application.

CASL (Exemption Override)

For Canadian Dealerships DealerMine is providing an “Override” option in which the following types of messages based upon current “business relationships”, will not be considered a CEM in the meaning of CASL, as long as the message is only for one or more of these purposes:

1. facilitating, completing or confirming a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent;

2. providing warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased;

3. delivering a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent

Within the DealerMine system these “exemptions” relate to:

• • Appointment Confirmations

  • NoShows

  • Recalls

  • Special Order Parts

*This is a customizable option within User Setup (Users Defaults > DealerMine Access > Email > CASL Override) to allow users to send emails for the afore mentioned "exemptions" to customers regardless of being turned off for messaging. Once "On", DealerMine will display a "Yield" sign beside the customer's email on their Profile Screen...indicating to proceed with caution.

NOTE: Dealermine accepts no responsibility for and by using the DealerMine CASL fetch system or communications systems, dealers are representing and warranting that they have made their own inquiries with respect to compliance with CASL and that they are solely responsible for their use of the Dealermine fetch system and any breaches of CASL arising from their use which violates CASL. Dealermine is NOT providing legal advice and strongly recommends that dealers contact their own legal counsel to seek advice on compliance with CASL and the sending of commercial electronic messages.