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Understanding Canada’s anti-spam and do-not-call rules

No matter how diligent a Realtor is in following Canadian Radio-television and Telecommunications Commission policy when it comes to spam and do-not-call lists, it’s tough to understand the full scope of your obligations and risks, particularly when hiring a third party to manage your telemarketing or provide leads.

The legal team at CREA said in an email to REM that Realtors are obligated to comply with Canada’s Anti-Spam Legislation (CASL) when they send commercial electronic messages (CEMs). And they are obliged to comply with Canada’s National Do Not Call List (DNCL) legislation and telemarketing rules when they make unsolicited telephone calls.

“These obligations are extensive,” says CREA. “Generally speaking, under CASL, Realtors must obtain the necessary consent to send CEMs and include the necessary contact information and unsubscribe link. Under the DNCL, generally speaking, Realtors conducting telemarketing must register as a telemarketer and subscribe to the DNCL and then only conduct telemarketing to phone numbers that have not registered on the DNCL, subject to exceptions.

“The most important thing for Realtors to be aware of when they hire a third party to manage their telemarketing operations is that does not absolve the brokerage of its DNCL responsibilities.

“With respect to the DNCL, each brokerage is responsible for calls made on its behalf. Therefore, brokerages should exercise caution if hiring a service provider. They may wish to make inquiries to ensure any calling practices are consistent with the law,” says CREA. “The same principle applies to CASL. Hiring a third party does not absolve the brokerage whose CEMS are being sent of responsibility to comply with the law.”

CREA has suggested the following practical tips when hiring a third party:

  1. Determine your legal obligations, for example by reading CREA’s guidance materials.
  2. Read the fine print of the terms and conditions of any agreement signed with a third party. This includes looking for written assurances that the third party is complying with the law.
  3. Conduct a reference and background check, for example by reviewing regulator websites to determine if any administrative monetary penalties (fines) have been levied against the third party.
  4. Take grandiose claims by third parties with a grain of salt.

Bryan Statt, provincial practice advisor with the Alberta Real Estate Association, said this is an important issue for members to understand. Realtors are bound by both of these legislations and brokerages must have a policy in place to manage the practice of the brokerage and its associates.

He says CASL legislation covers email, text, social and direct messaging.

“It’s the broadest reach when it comes to any electronic messaging,” says Statt. “And I think that’s probably the one thing that a lot of members don’t fully understand – that it’s not only about sending spammy emails – it’s about any kind of commercial electronic message. That’s the way the legislation defines it.”

Statt says many Realtors don’t understand CASL and the DNCL.

“I think there’s still a general misconception on the grounds that if I know them I can email them,” he says. “That’s not entirely true. It’s a complaint-based enforcement for both do-not-call and the anti-spam to some degree. Do-not-call is a little bit different because they do actually run random audits and that can be fairly onerous.”

Statt said Realtors should talk to their brokers if they are not sure what they can or cannot do, because the brokers have not only a business interest but also a legislative requirement to be compliant and to make sure their people are compliant.

If brokers don’t have an answer, AREA can be contacted directly for clarification. He said AREA and CREA also have a number of resources on the topic.

“The big one probably, when it comes to anti-spam and do not call, is just don’t buy leads. That’s a general rule unless you’re very, very specific, don’t buy leads,” says Statt.

“There’s an industry out there that tries to sell, call it a bucket or a list of leads, to Realtors . . . How qualified they are is a point for another discussion. But what a Realtor might not consider is whether or not that list has been compared against the do-not-call registry. Also, have they already given express consent to be emailed or communicated with electronically? And just because the company who is selling you the leads says that they were does not mean that they were. The federal government takes the position that the person who is using the commercial information at the end of a chain is actually the one responsible.”

The CRTC website has specific guidelines for the real estate industry which can be found here.

The CRTC also has an information line at 1-877-249-2782. But Alain Garneau, director, telecommunications enforcement for the CRTC, says, “It’s really important to mention that our role is not to substitute for external legal counsel. It’s always a good (practice) to reach out to your legal counsel because it’s not part of our mandate to provide legal advice.”