CASL and social media

> Use caution when sending direct or private messages
The good news is that any message that is posted publicly on a social media platform does not fall under the CASL umbrella, according to Wendy Mee, an associate with Blake, Cassels & Graydon LLP in Toronto.

However, be cautious when sending a private message to a connection through a social media network. CASL provides an exemption for these messages, but with conditions, according to Mee.

“If the user interface through which the message is sent contains the [sender] information and ‘unsubscribe’ mechanism,” Mee says, “then you’re exempt from CASL as long as the [recipient] has consented to receive it whether implicitly or explicitly.”

It could be argued, Mee says, that if the social media network provides a way for users to block direct messages, that could be considered a method for recipients to unsubscribe.

The question, then, becomes: How do you receive consent on social media?

If an individual has accepted an invitation to connect with you prior to July 1, that person has provided implied consent, says Paula Amy Hewitt, legal counsel, privacy officer and secretary with Dundee Capital Markets Inc. in Toronto.

That is the interpretation Hewitt has shared with her firm’s advisors about their current social media connections. However, Dundee’s advisors will be expected to obtain express consent from those individuals, as well as any future connections made on social media. The firm has also developed a short website address that can be added to any private message, which will direct the recipient to the required sender information and “unsubscribe” option.

Every firm will have its own policy for compliance with CASL. Be sure to ask for more information from your firm’s legal department.

> Consent from social media stays on social media
“If you receive [express] consent from anyone on your social media platform, that consent remains within social media only,” says Javed Khan, president of EMpression in Aurora, Ont.

So, if you have received consent to contact a person through social media, and that person has published an email address on his or her profile, you cannot yet contact them with a CEM through email.

For example, a LinkedIn connection includes his email address on his profile. Although he has agreed to your invitation to connect through the social media network, he has not necessarily invited you to send him your e-newsletter.

There is one exception. If someone’s email address is made publicly available — whether through his or her corporate website, social media or a business card that was presented to you — that person has given implied consent. However, this consent is based on two stringent conditions:

1. If this person has directly told you that he or she does not want any CEMs, or there is a note to that effect where his or her email address is published, you must comply.

2. You may contact this person only in relation to his or her professional function. So, if you find a lawyer’s email address, it is debatable whether you can contact him or her to offer your financial advisory services to the lawyer’s family, according to Mee.

However, you would be more in line with CASL if you were to access the email address of a professional or business owner who is a member of your niche or area of specialization. For example, if you specifically provide planning services for small businesses you might contact a small-business owner.

One strategy, Khan says, is to carefully publicize your electronic content through social media. This is an opportunity to “cross-polinate,” he says.

“There are people on your social media platform,” Khan says, “who may not know that you have this newsletter with really great content.”

You can send a private message to some contacts, informing them of your newsletter and inviting them to subscribe through the link you will provide.

This is the fifth instalment in a five-part series on Canada’s anti-spam legislation.