July 1, 2014
by Staff Writer
On July 1st, Canada’s Anti-Spam legislation (CASL) came into force.
Widely considered to be the most stringent anti-spam legislation in the world, it will definitely change the way you do business with Canadian customers and prospects.
Unlike most anti-spam legislation, CASL is based on the principle of Opt-in instead of Opt-out. As a result, since July 1st, you must have some form of consent in order to send a “commercial electronic message” or CEM into Canada.
A CEM can be an email, a text message or a social media direct message. Failure to comply can result in hefty fines for both organizations and individuals.
Meh… fines are just a cost of doing business!
That may be so in other instances, but with CASL, the fines can reach up to $10 million for a business, and $1 million for an individual. And company administrators and owners are personally responsible for the actions of their organizations and their employees.
But wait, I’m not Canadian! This surely doesn’t apply to me?
Well actually, it does. The law applies to email messages sent from or accessed in Canada. There is an international cooperation agreement between a long list of countries that have pledged reciprocal cooperation to fight spam.
OK, so how do I get consent?
There are two kinds of consent recognized by CASL: Explicit and implied.
Explicit means that someone agreed, either in writing, or verbally, to receive your messages. Oh, and by the way, an opt-in check box on a web page must not be pre-checked.
Implied, on the other hand, is based on a person’s behavior. It results from an action that would lead a person to expect to receive CEMs from you. This includes buying a product or service. You have up to 2 years from the last purchase to either get another sale, or get an express consent.
You also have implied consent if someone requests information, or a quotation from you. In that case, the implied consent is valid for 6 months. So you’d better get them to close fast — or get their explicit consent to continue the communication.
Oh, by the way, since July 1, an email requesting consent cannot be sent… without consent.
Oh man, I didn’t ask for consent before July 1st. Is it too late?
Well, if you have documented implied consent – if you can prove a purchase or an information request, web opt-in, etc. – and you’ve been sending emails already, you’re probably ok. There is a three-year transition period during which you can continue to use your existing valid explicit and implied consent to send CEMs and to seek explicit consent.
Oh, so it’s pretty much business as usual then?
Hardly. The thing is that with CASL, the burden of proof is on you. So, if someone files a complaint, you have to be able to prove that you have some form of consent.
To have that proof, you must always record the date and time of the consent, the manner in which it was received and the nature of the consent (what they said yes to).
Which leads us to the opt-in statement copy. Try not to paint yourself into a corner by being too specific. Broad categories like news and information, offers and deals are sufficiently clear, yet broad enough that they will cover a range of message types.
Do I need to change the emails themselves?
Not if your emails are already well crafted. You should already be able to meet the three key requirements, which are to:
- Clearly identify the sender
- Provide a means of contacting you: postal address and your phone number or email address, contact us link, etc.
- Include a working unsubscribe link that is simple to use. You have up to 10 days to carry out the unsubscribe.
For more information on some of the many exceptions, exclusions and other requirements, visit the Fight Spam website.
Note: This should not be considered legal advice. It is provided for information purposes only. CASL also includes other regulations that you should be aware of. Discuss the impact of CASL with your legal counsel.
By Mark Morin, Owner, Strategies Relationship Marketing.