Be King of the CASL
Canada has some of the strongest anti-spam legislation in the world. Starting on July 1, 2017, it is going to get even tougher.
What is CASL
Canada’s Anti-Spam Law (CASL) deals with ensuring that the recipients of Commercial Electronic Messages (CEMs) have agreed to receive those messages.
A sender must have either express or implied consent from the recipient in order for a CEM not to violate CASL. Express consent must be in writing and clearly state that the recipient wishes to receive CEMs from the sender. Express consent is valid until the recipient indicates they no longer wish to receive them but implied consent is time limited.
Implied consent and the “business card exception”
Implied consent is one of the trickiest areas in CASL because there are a few different types. One type is Disclosure. When a person provides you with their contact information you can send them CEMs as long as they are relevant to the recipient or their business. This is also known as the business card exception; a person who gives you their card has given their implied consent to receive relevant messages.
Another type of implied consent exists where there is an existing business relationship with the recipient. A business relationship is created when a person buys something from your business or makes an inquiry about goods or services. This type of consent is valid for two years for a purchase and six months if they have made an inquiry. Once the time limit expires it is the sender’s responsibility to remove them from their email list. The rules for charities and political parties are a bit different, but beyond the scope of this blog.
There is also an exception for “conspicuously published” email addresses (for example these posted on a website) as long as your CEM is relevant to the recipient.
What’s happening on July 1, 2017
Phase 2 of CASL comes into effect on July 1, 2017. Some types of prior consent were grandfathered into phase 1 but on July 1, only consent like the ones outlined above will be considered valid. Any CEMs sent without a valid consent will be considered a violation of CASL.
Starting this July, any individual or business can make a claim for damages under CASL. Up until now, only the Canadian Radio-television and Telecommunications Commission (CRTC) could police CASL violations. This change alone is a good enough reason to take a good look at your electronic marketing strategy to make sure you are not violating the new law as many observers expect to see an increase in complaints after July 1. Update: This provision was suspended as of June 7, 2017, no word yet when it will come into effect.
Having explicit consent from your customers is critical to avoid violating the law. Being able to prove consent is just as important as getting it in the first place. Porter Airlines was fined $150,000 for being unable to prove they had consent from the customers on their mailing list.
If your business plans on sending CEMs after July 1, 2017 you should:
· Ensure you can prove you have implied or express consent for everyone on your mailing list.
· Ensure you have system to track implied consents and to remove recipients from your mailing list upon expiry.
· Include a clear opt-out or unsubscribe option in your marketing emails.
Will your business CASL compliant on July 1st? Contact us to set up a no obligation consultation with one of our lawyers to review your customer outreach strategy. For more information on this visit http://www.fightspam.gc.ca or go here for answers to frequently asked questions.
By: Peter Duke, JD
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