Page 20 - ILCO March 2016 Newsletter
P. 20
CANADA’S ANTI-SPAM LEGISLATION:
CONSIDERING CASL IN BUSINESS TRANSACTIONS
By Anne-Marie Naud, Kirsten Thompson and Nicolas Bertrand, McCarthy Tétrault LLP
consents were obtained and whether it has sufficient tools to keep track or entering the contest and the language is clear and understandable in
and identify them all. If the consents have not been validly obtained in terms of what is being consented to.
the first place, no transfer of consent in fact occurs.
PREVENTION: AVOIDING EXPOSURE TO LIABILITY
There are also particular issues that may arise when purchasing the assets
comprising a division of a company. Where consent has not specifically As mentioned previously, Industry Canada and the CRTC both tend
been given to the division, but rather to the company operating said to suggest in their respective guidelines that express consents may be
division, express consent will likely need to be obtained by the purchaser validly transferred if the purchase agreement includes specific language
in order to continue distributing to and benefiting from the customer to that effect. Purchasers should therefore include a provision that express
distribution list of the business. If both the division and the overall consents are transferred upon closing of the transaction, and carefully
operating company have been relying on different types of consents consider how they will validate and transfer implied consents.
arising from different types of transactions (e.g. online transactions
are with the operating company, but in-store transactions are with the Purchasers should also conduct proper due diligence to identify potential
division) and such consents are not separated out on a customer list, CASL liabilities that may arise. This should include an examination of
distinguishing between the two can become virtually impossible. how and for what purpose consent was obtained by the business, as well if
One possible solution to this issue is for the vendor to send an e-mail on proper consent management tools are in place. The potential liability of a
purchaser may be further limited by including specific representations and
behalf of the purchaser asking customers to explicitly accept that as of warranties with respect to CASL in the purchase agreement, specifically
the date of closing, they agree to receive CEMs from the purchaser. The regarding the validity of the consents held.
e-mail must offer the option to the customer to unsubscribe at any time.
Consent may even be obtained in conjunction with a contest or discount Lastly, risk may be limited by including CASL related indemnity
offer, provided that consent is not a condition of receiving the discount provisions in the purchase agreement.
This article is reprinted with the permission of the
authors. It was originally published in McCarthy
Tétrault’s CyberLex blog, which is a part of the
Canadian Law Blogs List (Lawblogs.ca).
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20 LAW CLERKS’ REVIEW, MARCH 2016
CONSIDERING CASL IN BUSINESS TRANSACTIONS
By Anne-Marie Naud, Kirsten Thompson and Nicolas Bertrand, McCarthy Tétrault LLP
consents were obtained and whether it has sufficient tools to keep track or entering the contest and the language is clear and understandable in
and identify them all. If the consents have not been validly obtained in terms of what is being consented to.
the first place, no transfer of consent in fact occurs.
PREVENTION: AVOIDING EXPOSURE TO LIABILITY
There are also particular issues that may arise when purchasing the assets
comprising a division of a company. Where consent has not specifically As mentioned previously, Industry Canada and the CRTC both tend
been given to the division, but rather to the company operating said to suggest in their respective guidelines that express consents may be
division, express consent will likely need to be obtained by the purchaser validly transferred if the purchase agreement includes specific language
in order to continue distributing to and benefiting from the customer to that effect. Purchasers should therefore include a provision that express
distribution list of the business. If both the division and the overall consents are transferred upon closing of the transaction, and carefully
operating company have been relying on different types of consents consider how they will validate and transfer implied consents.
arising from different types of transactions (e.g. online transactions
are with the operating company, but in-store transactions are with the Purchasers should also conduct proper due diligence to identify potential
division) and such consents are not separated out on a customer list, CASL liabilities that may arise. This should include an examination of
distinguishing between the two can become virtually impossible. how and for what purpose consent was obtained by the business, as well if
One possible solution to this issue is for the vendor to send an e-mail on proper consent management tools are in place. The potential liability of a
purchaser may be further limited by including specific representations and
behalf of the purchaser asking customers to explicitly accept that as of warranties with respect to CASL in the purchase agreement, specifically
the date of closing, they agree to receive CEMs from the purchaser. The regarding the validity of the consents held.
e-mail must offer the option to the customer to unsubscribe at any time.
Consent may even be obtained in conjunction with a contest or discount Lastly, risk may be limited by including CASL related indemnity
offer, provided that consent is not a condition of receiving the discount provisions in the purchase agreement.
This article is reprinted with the permission of the
authors. It was originally published in McCarthy
Tétrault’s CyberLex blog, which is a part of the
Canadian Law Blogs List (Lawblogs.ca).
HOME INSURANCE AUTO INSURANCE
Coverage for wherever you call home. We’re on the road with you.
- Detached, Semi-detached and Townhomes - Automobiles
- Condominiums - Motorcycles
- Seasonal Dwellings - Campers, Trailers, Motor Homes
- Rented Dwellings - Snowmobiles
Rai Grant - Watercraft - All-Terrain Vehicles
Insurance Brokers
Better Coverage, Better Price TM - Content insurance for renters - Antique Vehicles
ILCO Members 905-475-5800 or toll free at 1-800-561-6195
Group Home & Auto Insurance groupservice@raigrantinsurance.com
SAVE UP TO 30% raigrantinsurance.com
20 LAW CLERKS’ REVIEW, MARCH 2016
