Have you considered how CASL affects social media for lawyers? I hadn’t until reading “Lawyers, Step Lightly: Social Media Meets CASL” by Catherine Bate and J. Andrew Sprague.
Three variables of compliance with CASL
- You must have expressed or implied consent to send a
- Commercial Electronic Message (CEM) to an
- Electronic Address
Breaking it Down
CASL’s definition of a personal relationship is “where the parties have direct, voluntary, two-way communications, and where it is reasonable to conclude that they have a personal relationship based on a number of factors, including shared interest, frequency of communication and whether the parties have met in person.”
Therefore, a Facebook friend, twitter follower, LinkedIn connection, being added to circles on Google+, a Pinterest board follower, and/or an Instagram follower is generally not enough to be considered implied consent unless there is a personal relationship based on other factors (shared interests, frequent communication, and/or having met in person).
2. Commercial Electronic Message (CEM)
According to the Government of Canada, CASL does not apply to “non-commercial activity, voice, facsimiles or auto-recorded voice calls, or broadcast messaging including tweets and posts.”
Therefore, any social media message that does not promote commercial activity is not captured under CASL. Any social media message that does promote commercial activity, products, or services, is considered a CEM and requires consent to be posted to an electronic address.
There are multiple grey areas related to social media CEMs including mentions/tags, invitations to like a page on Facebook, adding to a Facebook group, and many more. Travel Industry Today has written a detailed post on these areas.
Including your contact information, mailing address and an opt-out opportunity is mandatory with all CEM. Most social media platforms already allow a user to opt-out of receiving messages from another user, therefore, you don’t need to provide this. However, your contact information needs to be readily available on your profile or via a link to your website.
3. Electronic Address
According to CRTC, a message posted to a public bulletin board format is not captured under CASL, however, a direct or private message is. For example, a Facebook wall is not considered an electronic address, however, a Facebook message is considered to be an electronic addresses. Commercial messages are prohibited in these venues without consent.
Lawyers: don’t be discouraged from using social media. I want to assure you that CASL will not eliminate its value. Continue to share your blog posts, articles on legal news, respond to comments and tweets, etc. Be cautious, and, when in doubt, revert to these three variables of compliance with CASL:
- Do you have consent?
- Is it a commercial message?
- Is it being sent to an electronic address?
Natalie brings a passion to the business that ensures the entire LawyerLocate.ca team strives to improve the service for both lawyers and the general public. To that end, she is committed to ongoing communication with our members and welcomes and relies on clients’ input to continually evolve the service to make it better for all.
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