Now that most of your CASL planning is done and we are in the Hurry up and Wait part of our countdown it’s time to think about some auxiliary email programs like Forward to a Friend. Sending unsolicited CEMs is clearly against the intentions of CASL and Forward to a Friend seems to be a great big target for potential violations under the legislation.
Lets review the explanation of Forward to a Friend from the Regulatory Impact Analysis Statement (RIAS) about Forward to a Friend:
Stakeholders also noted concerns regarding their liability in “Forward to a Friend” (FTAF) marketing campaigns. Some stakeholders argue that they should not be held liable should they introduce a ‘Forward-to-a-Friend’ (FTAF) campaign, where they ask clients, customers or people who are signing up to a contest or similar activity on their website to forward the CEM to friends and family. They suggest CASL would hold them liable as they are the party that is causing the CEM. A due diligence defence exists in CASL, if those who promote FTAF campaigns provide prospective clients and contestants with the limitations defined for family and personal relationships (as set out above) they can use these to reduce their liability. [Emphasis added]
In a strict reading of this you could interpret that as a sender that supports Forward to a Friend on your website that also initiates a Commercial Electronic Messages to an individual you can at best only reduce your liability under CASL and not eliminate it completely. In order to accomplish this you would need to have the person sending the forward read and agree that the people that they are sending these emails to qualify under the definitions of a Family or Personal relationship as defined by CASL (see below).
These definitions are somewhat more narrow than the traditional understanding of these terms in other legislation:
Family or personal relationships:
The Regulations define “family relationship” for the purposes of CASL in a broad manner that is in keeping with Canadian law. The definition is a relationship between two people related through a marriage, a common law partnership, or any legal parent-child relationship, who have had direct, voluntary two-way communications.
The Regulations define “personal relationship” for the purposes of CASL. The definition is a relationship between two people who have had direct, voluntary two-way communications where it would be reasonable to conclude that the relationship is personal. Determining whether the relationship is personal would be based on a non-exhaustive list of factors provided in the Regulation.
This would exclude a range of people from being eligible to receive forward to a friend messages – ex: co-workers where there is no personal relationship established only a working relationship. In order to have proper due diligence here the person triggering the emails would need to be presented with these two definitions and agree that the people they are planning on sending these FTAF emails to meet one of the two definitions.
If this isn’t a clear call to move from Forward to a Friend’s email and upgrade to a Social Sharing program then I don’t know what else would be. I recommend this upgrade happen almost four years ago, maybe I was a little to early on my predictions and the time is now.
Is this enough to make you consider a sharing upgrade, let me know your thoughts.