Financially Responsible Marketing

CASL: Canada’s tough new anti-spam legislation

Posted by on May 26, 2014

On July 1st Canada will bring in what may be the world’s strictest anti-spam legislation. Even if your organization has been following email best practices, CASL changes the game.

In this post you’ll get a:

  • Review of CASL
  • Simple strategy for compliance
  • List of CASL faqs.

We’ll focus on emails, although CASL applies to texts and some phone messages as well. CASL lumps these commercial messages into CEMs:

A commercial electronic message (CEM) is an electronic message whose direct or indirect goal is to encourage participation in a commercial/business activity. E-newsletters, electronic sale flyers, and online client surveys are all CEMs.

Three reasons to care about CASL (Canadian Anti Spam Legislation)

  1. CASL has sharp claws. Penalties range from up to $1 million for individuals and up to $10 million for organizations.
  2. Once CASL is fully in place, just about anyone in Canada can register a complaint against you. Ouch!
  3. Email is a powerful tool to generate leads and maintain relationships. Increasingly, it’s all about the relationship – you need to know CASL.

 

Consent consent consent … and timing

CASL is grounded in consent. The tricky part comes in defining exactly what ‘consent’ is. And when. And for how long.

There are two types of consent under CASL: implied and express. Let’s talk about express first.

 

Express consent: It means action

You can get express consent only if your prospect acts. Your prospect/client has to do something to provide express consent. Typically:

  1. Your prospect signs up to a mailing-list form on your website.
  2. Your prospect clicks on a confirmation link in an email.

Note that:

  • Express consent that is obtained pre-CASL is still viable after. Once you obtain it, you don’t have to do it again.
  • You cannot use a pre-checked box on a form to secure consent. The examples below are taken from the CRTC website.

 

The pre-checked box invalidates this as a type of express consent under CASL.

The two above forms are valid under CASL because they require an action – in the first, the person must click the box, and in the second, fill in an email.

Implied consent: the lines have tightened

Implied consent used to be a spacious, forgiving area, with room for manoeuvre. No more.

CASL draws firm lines around implied consent. You need an existing business relationship, proven by:

  • The purchase of a product or service within the past two years
  • An inquiry or application within the past six months.

You can also send a CEM when your message is relevant to the person’s role, they haven’t indicated they don’t want unsolicited CEMs, and they have:

  • Conspicuously published their email address
  • Disclosed their email to you – known as the ‘business card’ consent.

 

Simple strategy for compliance

Three things to do right away

  1. Take a look at any sign-up form you have online. Make sure you don’t have any pre-checked boxes.
  2. Tell yourself, this is an opportunity. Not a misery. It’s good practice to regularly cull your list! A good list is about quality, not quantity.
  3. Document what you have done and are doing to become compliant, in the simplest way you can think of. An Excel spreadsheet with columns for name, email, date, and means of achieving consent can be enough. Even if you get into trouble with CASL, if you can demonstrate that you made real efforts to comply it will make a considerable difference.

 

Three things to do next

  1. For each name on your mailing list / database, decide if you have implied or express consent.
  2. Create a plan to get express consent for each implied consent name. The easiest way is an email requesting direct consent that includes an attractive offer – e.g. “In our next newsletter, we’ll be sending information on X, or a white paper on Y.” Just as we did today!
  3. Make sure your email-list template is compliant (mailing address, phone number, unsubscribe option). If you use one of the leading email services, such as MailChimp or Constant Contact, you’re probably in compliance already.

 

FAQs

I keep seeing references to CEMs. What is a CEM?

A commercial electronic message (CEM) is an electronic message whose direct or indirect goal is to encourage in commercial/business activity. Very roughly, it’s a marketing/sales message of some sort.

I already have express (opt-in) consent for most people on my list. Do I need to re-obtain consent now?

No. But it’s wise to have proof of the consent.

Can I email a prospect to obtain express consent to send emails?

Catch-22! An email that contains a request for consent to send more emails is considered to be a CEM. In other words – you cannot email to obtain consent unless there is a pre-existing relationship or a CASL exemption.

Does consent last forever? Or do I have to renew it?

Yes and no. Express consent lasts until it is explicitly withdrawn. Implied consent has time limits. Implied consent (achieved by, say, the sale of a product) lasts two years, and the clock is re-set every time that customer re-purchases.

This being said, you should always try to move each of your list members to express consent.

Can I ask subscribers why they want to withdraw their consent, when and if they do?

No. Unsubscribes cannot be reconfirmed. No sending of “You’re sure you want to leave our list?” emails.

I get emails that appear to come from ‘Great Deal’ or something similar. Is that still allowed after July 1 2014?

No! CASL explicitly forbids misleading/false subject lines or sender names. Your CEMs must clearly indicate who the sender is.

Is my website URL enough contact info on a CEM?

No. You must have a physical postal mailing address (PO boxes are fine) plus one additional way to contact you (e.g. website, phone, email).

Does that mean I can’t email someone I’ve been given a referral to? Would that make me non-compliant?

Yes you can. In your initial email to the referral, just include the name of the person who made the referral.

When can I send a CEM? When is it okay?

You can send a CEM if you:

  1. Have expressed or implied consent from the recipient.
  2. Clearly identify who is sending the email.
  3. Provide a way for your recipient to unsubscribe from further messages.

Does that mean I can’t send my friend or family member an email about an online deal? Or forward a newsletter to to a colleague at another company?

This is where exemptions come in. CASL has a long list; following are the major ones (aside from those affecting charities and fundraisers, which we are not covering in this post).

You can send a commercial email without implied or express consent if:

You have a personal / family relationship with the recipient.

  • Your messages relates to an inquiry for commercial goods or services.
  • You are an employee, representative, consultant or franchisee of an organization writing to another employee, representative, consultant or franchisee in your organization. Or in another organization, if the message concerns the activities of the organization to which your email is sent.
  • Your message is sent in response to a request or inquiry – the ‘email reply’ exemption.
  • Your message is sent or received on a social media platform.

What’s this two-year window for implied consent? I heard it could be three years – help?

During any Implied Consent two-year window, if a client makes another purchase from you, the clock resets to a further two years. That being said, it is a good idea to secure express consent at some point during the two years so that you don’t to worry about expiry.

What about the transitional period I heard about?

CASL includes a special transitional period. For existing relationships, CASL will provide for a three-year transition period under which consent can continue to be implied (unless expressly revoked).

Best of luck! And stay in touch!

 

Imaginis Business Development