The future global legal industry.

• Author: Conley, Steve
• Position: Exit Strategies - Industry overview

Passing through Canada soon? Plan to check your electronic messages at the door.

The Canadian anti-spam legislation, which may be fully enacted by July, likely impacts the marketing materials that law firms, companies and nonprofits send to clients and contacts. The law--CASL for short--has been tweaked, may be tweaked again and is broader than its American cousin, the CAN-SPAM Act, which specifically addresses email messaging.

CASL is designed to encompass more than email.

"It's really now about how to do electronic in Canada properly," said Kris Klein, a partner at nNovation LLP, a small boutique that specializes in privacy, data collection and information-access issues from offices in Ottawa and Toronto.

"(CASL) addresses delivery of electronic messages Period," Klein said, noting that commercial messages that "pass through in Canada" fall under the law's purview.

Whether a message--including email, software downloads, "cookies," video clips or mobile apps--originates inside or outside of Canada, law firms and other organizations will need to comply with CASL's broad scope and business communications focus or risk up to $10 million in penalties.

Another Canadian expert, Martin Kratz of Bennett Jones' Calgary office, highlighted transition issues, including CASL's opt-in, express consent provision, a key difference between CASL and CAN-SPAM, which is opt-out focused.

Kratz noted via email that "express consent will need to be sought during the three-year transition period to continue sending commercial electronic messages beyond that point in time."

Piece of cake, right? Well, maybe not.

"You cannot obtain express consent electronically," Klein said.

Even if attorneys personally collect business cards at a conference, they won't necessarily be able to send a nicely branded, follow-up email to expressly ask for opt-in consent Instead, firms may need a non-electronic process to gather--and document for Canadian regulators--a client's or customer's explicit permission in advance of e-communications.

So, one of the keys to CASL, as it were, is its "extra-territorial effect," a term Kratz used. Fail to adhere or pay up and legal marketers from Kazakhstan to Kansas soon may be locked out at the Canadian border.

Alycia opened this issue of Strategies talking about transformational change, and our peers then presented their international perspectives. When combined, these two themes parallel one of the best conversations that occurred at the...