CASL (Canada’s Anti-Spam Law) – How to Interpret It and What To Do Next

You’ve likely already heard about the new Canada Anti-Spam Legislation (CASL), and have probably even received several notifications from publishers asking you to confirm your “consent” to continue receiving their email communications. In the last few months, we conducted several audits for our clients regarding changes required to their email marketing management and process, and now we want to give our blog readers a plain-language overview of the implications CASL will have on sending business emails, newsletters, promotions, etc. We are not legal professionals – we are marketers, so if in doubt, consult your legal council regarding how CASL applies to you.

The Canadian government has issued new guidelines for the Canada Anti-Spam Legislation (CASL), most of which will come into force on July 1, 2014. The legislation goes much further than simply regulating email communications with potential or existing customers, as it also covers text messages, software programs and mobile apps downloads. For the purpose of this post, we are only talking about email compliance.

There is plenty of information online (including the official government website FightSpam and CRTC), but it can be hard to interpret the formal legal explanations. So this is why we’ve written this blog post to give you everything you need to know in any easily-understandable format.

[See also our new CASL Compliance Service to get you and your email lists up to speed]

Overview

First we’ll give you the top level summary. Essentially CASL dictates that opt-out consent will no longer be sufficient; it must be a positive/opt-in consent. What does that mean? It means just giving a person the ability to unsubscribe is not good enough; they must have consented to receive that communication in the first place.

3 Simple Rules to follow

1. Obtain Consent. You must have expressed or implied consent to send a message (more details below)
2. Use clear identification. You must clearly and simply identify yourselves and anyone else on whose behalf the message is sent.
3. Implement unsubscribe mechanism. In every message you send, you must provide a way for recipients to unsubscribe from receiving messages in the future

What are the implications?

• It means you may have to pick up the phone more often for sales!
• We’re likely going to see an increase in direct mail. Strangely enough, there’s no law governing unsolicited physical mail, like there now is for e-mail.
• You have 3 years from July 1st, 2014 to make all your email recipients ‘opt-in consented‘, not just ‘opt-out consented‘ (explained below).

Expressed vs Implied Consent – and What You Need to Do

Expressed consent (no expiration date)

Express consent refers to clients who have opted-in to receive your email communications. If you are using an online form which collects and stores emails from people who wish to sign up future newsletters or emails, then you are already doing pretty well! Express consent can also be attained in writing (such as a customer providing their written email and consent at a tradeshow) or verbally (over the phone, when the phone call is recorded).

A key point here is that you must have proof of their consent. So if you’re collecting emails through a website form, they must be stored in a database with the date of subscription, and if done over the phone, the call must be recorded.

Once a customer provides express consent, there is no time limit to how long you can be sending them emails unless they unsubscribe.  You do not need to ask these subscribers for consent once the law is in the effect, they have already given it.

Implied consent (previous or existing business relationship, expiration date)

Implied consent constitutes people you have an existing business relationship with (ie. clients who have purchased from you) or non-business relationship with (ie. volunteer work). In the case of clients with implied consent you are required to later obtain express consent.

Consent can be implied in the following instances:

• You are communicating customers who have purchased services, products or memberships from your organization in the past 2 years.
• As a registered charity or political organization, you are sending emails to people who have made a donation / gift, attended a meeting or volunteered for your cause.

However, as of July 1, 2014 you have a 3-year transitional period to turn all ‘implied’ consents into ‘expressed’ consents.

Express consent can be attained verbally or in written form (as mentioned above). Here are some of the ways expressed consent can be attained:

• Asking a potential client by email or phone if they mind being added to your email list. Again, the call would need to be recorded.
• Directing your implied consent subscribers to a website form where the person can ‘express‘ their consent to continue receiving communications via an “I Agree” checkbox, or the like.
• The person enters their email directly into an online subscription form to receive communications.

According to the new law, consent is NOT required if you are:

• Sending emails to a relatives or people you have personal relationships with,
• Responding to a lead inquiry from a prospective client that contacted you within the previous six (6) months,
• Providing any product related information to the customer such as security upgrades, warranty, safety, delivery terms, upgrades, or other ongoing relationship information,
• Or sending a single email to a person you were referred to by stating the name of the person who referred you.

 Summary of Best Practices

• Never purchase email lists, or send any commercial email to someone who has not explicitly consented to receiving it (opted in or given express consent).
• Email subject lines, promotions, or content should not be misleading.
• Clearly identify your company by providing the name, mailing address and contact information in the footer of each email correspondence.
• In every message you send, you must provide a simple unsubscribe link, which functions properly when clicked to remove the recipient from all future communications.

Example

Below you can see exactly what our subscription form and blog post notification email looks like for this very blog, both of which meet all the requirement for opt-in consent and best practices:

The main point to remember is that if the person hasn’t consented to receiving your email campaign, they shouldn’t receive it. Fines for non-compliance can reach the millions of dollars, so it’s best to ensure you’re following the guidelines. And when in doubt, we can help!

[See also our new CASL Compliance Service to get you and your email lists up to speed]

Thanks for reading,

– Julia