If you send email to people who reside in Canada, or who use servers in Canada to access their email, you need to be aware of Canada’s new anti-spam law and how it affects you.
Passed in 2010, the law takes effect July 1, 2014. The full title of the law is “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act”.
It has no official acronym but most people call it CASL, short for Canada’s Anti-Spam Legislation.
The law is intended to deter the most dangerous forms of spam in Canada, but due to the broad scope of regulation it introduces and the international application to businesses outside Canada, the law will affect all organizations doing business with Canadians.
All commercial electronic messages (CEM): email, text messages, instant messages, essentially any communication sent electronically that has a commercial purpose.
Commercial purpose is defined as a message that:
- Offers to purchase, sell, barter or lease a product, goods, a service, or land.
- Offers a business, investment or gaming opportunity;
- Promotes a person, including the public image of a person, as being a person who does any of the above, or who intends to do so.
If you are in business, that pretty much means all communication that you have with your clients and prospects that is not sent through the post office or conducted during a live visit or phone call.
What are the exceptions?
While strict in its rules, CASL provides some relief by designating some messages as exempt from the consent requirement: messages sent to family or friends, or inquiries about the recipient’s business, and messages sent solely to:
- Provide product/service quotes or estimates, if sent to the person who requested them.
- Further or complete a commercial transaction previously agreed to;
- Provide product warranty, recall, upgrade or similar information, if sent to buyers or users of the product.
- Deliver factual information about an ongoing subscriptions, memberships or similar relationships; or
- Communicate about an existing employment relationship.
Under CASL, consent is required prior to sending of a CEM. However, there are two types of consent: Implied and Explicit. Understanding the differences and classifying the consent of everyone on your list is the key to CASL compliance.
In order to obtain express consent the sender must:
- Clearly describe the purpose(s) for requesting consent;
- Provide the name of the person seeking consent, and identify on whose behalf consent is sought, if different;
- Provide contact information for either of those persons (mailing address and either a telephone number, email address or web address); and,
- Indicate that the recipient can unsubscribe at any time.
Express consent requires that the participant take a positive action in order to subscribe. Pre-checked check boxes, or opt-out options do not meet this requirement.
Express consent remains in effect until consent is revoked through an unsubscribe mechanism.
Additionally, CASL provides that consent may be implied in any of the following four circumstances:
- The sender and recipient have an existing business relationship
- The sender and recipient have an existing non-business relationship (charities, fraternal organizations, social organizations, etc)
- The recipient has conspicuously published their electronic address and has not expressly stated that they do not wish to receive unsolicited messages, and the message is related to the recipient’s professional capacity; or,
- The recipient has disclosed their electronic address directly to the sender, has not expressly stated that they do not wish to receive unsolicited messages, and the message is related to the recipient’s business or official capacity.
Implied consent, unlike express consent, has a time limit attached to it. Businesses may only send CEM’s to those with implied consent for a period of 2 years (24 months). This period is extended to 3 years for contacts already in your database on the day the law goes into affect in order to give businesses a chance to change and update their processes.
Similar to CAN-SPAM, all senders must include the following in every CEM:
- The name of the person sending the message, and identify on whose behalf the message is sent, if different;
- Contact information for either of those persons (mailing address and either a telephone number, email address or web address); and,
- A mechanism that allows the recipient to easily unsubscribe at no cost (reply to an email address or a web-based unsubscribe page, for example)
How to implement email marketing policies that are CASL compliant
If your business gathers email addresses of prospects or clients online, and does so in a way that doesn’t filter out people based on location, you likely have some Canadians on your mailing list already. That leaves you with two choices:
- Remove all Canadians and people who use Canadian computer systems to access their email from your system and install a filtering system to keep them off of your mailing list. Or.
- Change your practices to comply with CASL.
The second option is a better business decision as it keeps your business open to doing business with Canadians, plus it forces you to adopt better business practices that will enable you to better communicate with all of your mailing list subscribes by ensuring that you only send them the information that they want to receive.
Ensure your business is CASL complaint by following these steps:
- Update all optin forms to be CASL compliant. Add a notice that indicates that the subscriber will receive marketing messages as a result of signing up and they can unsubscribe at any time.
- Create separate lists for sending transactional/information emails (those that are exempt) and marketing messages (which require consent). Ensure that all subscribers can easily unsubscribe from the marketing messages.
- Review your current mailing list. Classify each address as having either express or implied consent. In doing so, consider that you must be able to prove express consent was given; if you cannot, put that address in the implied consent category. Craft a strategy for getting express consent from everyone who has previously given implied consent so that the consent is received prior to July 2017.
- Update all internal policies to ensure tracking of consent. Create permanent records of express consent. Delete contacts with implied consent when their 2 years expire.
The Canadian Radio-television and Telecommunications Commission has the ability to impose administrative monetary penalties for violations of CASL of up to $10 million per violation (Ouch!). Additionally, unlike CAN-SPAM, individuals can also seek monetary compensation for violations, although this part of the law doesn’t take affect until 2017. Clearly, it’s in your best interest to implement business practices that comply with the law.
Additional references for more information: