The Saskatchewan Professional Marketing Association recently had Jamie Herle from WMCZ Lawyers present “What You Need to Know About Canada’s Anti-Spam Law (CASL)” in an effort to provide clarity around the misunderstood and contentious legislation. The presentation addressed what steps businesses can take in order to comply with the laws. Taking effect July 1, 2014, the new CASL changes will severely impact email marketing. The following is a summary of what you need to know about some of the changes.
What is CASL?
Canada’s Anti-Spam Legislation (CASL), considered the most stringent commercial electronic messaging laws in the world will affect virtually every organization in Canada. It's goal is to restrict the amount of unsolicited electronic communications people receive. CASL applies to almost all electronic messages sent for commercial purposes as well as the downloading of software and apps. For the purpose of this summary we will focus on just electronic messages telecommunication, including text, sound, voice or image messages.
Definition of Commercial Electronic Messages
Commercial electronic messages (CEM) presumably encourage participation in commercial activity or are related to a commercial activity (I.e. eNewsletter). These messages should contain a request for consent to look at content, attachments, contact information, sale, purchases, goods, services, advertising and promotion. So, cold emailing a business prospect will technically be illegal once CASL comes into effect unless you have gained consent to send the message.
Consent Requirements to Send Messages
Essentially, you cannot send a CEM unless you have either implied or express consent and the contents of the message meet the prescribed requirements. The requirements include identifying the sender (name and address), and including an “unsubscribe” option within the message.
Implied consent will already likely be present if organizations have existing business relationships based on commercial dealings, contracts or inquiries. The CASL laws have applied a three-year grace period to the implied consent laws: time periods don’t apply until July 1, 2017 to any existing business relationship. However, any new electronic messages and business dealings initiated after July 1, 2014 are subject to CASL - Organizations will need to gain express consent to maintain contact with prospects beyond six months of their initial inquiry.
With these regulations, exceptions are also included. Exceptions include sending CEM’s to friends and family, interactive communications for an ongoing matter, a response, replying to inquiries, confirmation of a transaction, product/service warranty information, or information related to an employment relationship.
What You Should Do Before July 1st, 2014
Bearing these changes in mind, right now is a good time to get consent from your existing customers in order to be fully compliant by D-Day. After July 1, you can only send messages to customers who have given consent and you'll need to take measures to document consent. Prior to July 1st, mass mail outs to current subscribers/customers citing the law changes and asking them to confirm their consent to receive electronic messages should cover you.
When seeking express consent, you should clearly and simply establish the purpose of consent (adhering to CASM laws is probably a legitimate reason!), and clarify that express consent can be withdrawn by the recipient. Avoiding deception is key: be open and honest with your customers.
If you have an existing record of opt-in for third party lists, you will not need to acquire new consent. The CRTC has suggested use of a pre-checked box, or other forms of opt-out consent will not be valid forms of consent. Providing business cards at a trade show does not imply express consent, either.
Additional Tips
Using your website, you can create an express consent list by including a sign-up form, indicating that people are signing up to receive emails, identifying your organization as the sender. People should check an opt-in box that is not pre-checked, and receive a welcome message at the provided address.
It's strongly recommended that organizations use email marketing software to help with compliance and encourage best practices. The benefits of using email marketing software is two-fold; it provides a record of consent, keeping track of the date and time of the sign-up, along with the subscriber’s IP address, while keeping tabs on the content customers would like to receive. Examples of email marketing software are MailChimp, ConstantContact, Aweber, and ExactTarget but there are many others.
Final Thoughts
Does CASL apply to all types of messages? We don’t know yet. It’s possible that it may not apply to surveys, newsletters and messages involving pre-existing commercial relationships or activity that is already in progress. We don’t know if the CRTC, which has regulatory enforcement powers, agrees with this interpretation.
Penalties for failure to adhere with CASL standards, as enforced by the CRTS, the Office of the Privacy Commissioner, the Competition Bureau, and the courts, can be subject to fines of up to ten million dollars for businesses, and one million for individuals. Yikes. However, it's unlikely the government will have the resources to actually police every complaint and that their focus will be on going after the biggest offenders.
July 1, 2017 and on, a private right of action will exist, and Class Action lawsuits are expected to take place. In order to move forward and adhere to CASL standards, remember to create a separate express consent list, remove non-consenting and opt-out individuals, and consistently document your efforts. Keeping customers happy and adhering to anti-spam laws can be as simple as sending one clear message before July 1.
Article References
This summary is based on content provided by Jamie Herle from WMCZ Lawyers presented at a Saskatchewan Marketing Association event on May 8, 2014. Jamie Herle is partner with WMCZ Lawyers practicing in the corporate commercial group and has considerable experience with trademark law, condominium real estate, and business law.
