Once CASL takes effect, you will need express or implied
consent before you (or your franchisees) can send a commercial electronic
message (CEM). While franchisors are well aware of the pending impact of CASL
and have been diligently ensuring that their organizations are ready, the
bigger question that looms on the horizon is what are they doing to help their
franchisees understand and comply with CASL’s requirements. Franchisors will
typically be able to rely on implied consent under the B2B CASL provisions to
communicate electronically with their franchisees. The bigger concern will be
the B2C communications between franchisees and consumers. There is a lot of information
on CASL available and while seemingly straightforward, the actual
implementation for both franchisors and franchisees may prove to be more
difficult. Ask yourself:
1. Do your franchisees send CEMs?
2. Do you know whether they are aware that they need to have
consent to send CEMs?
3. Do you know whether they understand the difference
between implied or express consent to send CEMs?
4. Do their CEMs satisfy the CASL content requirements?
5. Do they know that the consents need to be recorded, in
case they have to prove they had consent to send a CEM?
6. Do you know if they have an unsubscribe mechanism for
their CEMs?
Enforcement of CASL will be undertaken jointly by three
regulators: the Canadian Radio-Television Commission, the Competition Bureau
and the Office of the Privacy Commissioner. These enforcing bodies will have
authority to impose a wide variety of sanctions on individuals and businesses
that contravene CASL. While the regulators will probably be lenient initially,
individuals may be fined up to $1,000,000 per violation and corporations may
be fined up to $10,000,000 per violation. CASL also creates a private right of action
that takes effect in 2017 that permits an individual to take civil action
against anyone who violates CASL. If your franchisees are not prepared for
CASL, it is not the risk of significant fines that you should be worried about,
but rather the potential backlash through social media.