Canada’s Anti-Spam Legislation (CASL)
On July 1 2014, the Canadian Anti-Spam Law (CASL) will come into effect. If you engage in email marketing or distribute email newsletters, this new legislation will have an impact on you and your business. If you visit the CASL website, it uses the term Commercial Electronic Messages (CEM) which is broader than just email. But CEMs include email marketing and email newsletters - and most of the questions I'm fielding are about email.
Let me start off with the usual disclaimer. I'm not a lawyer and this article does not constitute legal advice. If you need legal advice, you should go talk to a lawyer.
What's CASL all about?
There are three main things that CASL requires that may impact you if you send CEMs:
(1) You need an unsubscribe mechanism
(2) You must provide identification information
(3) You need consent
Number (1) is the easiest for us to tackle at Box Clever. If you use our MailGuide email system, we already require that you include the unsubscribe link on every CEM you send. So no worries there.
Number (2) is also not too hard. From what I've read to date, you need to provide at least one piece of contact information - physical address, a website address, or an email address. So ensure you have this in place and you're good to go.
Number (3) is the toughest because there are two types of consent under CASL - express and implied.
The subscriber opted in through a compliant opt-in form to receive marketing messages from your organization.
This consent never expires unless revoked by subscriber.
The subscriber has an existing business or non-business relationship with your organization. This consent expires after two years, but you can seek express consent during this time.
It is important to note that a person who alleges that they have consent (you - the email sender) has the onus of proving it. It will be important to ensure that when consent is obtained it is recorded in a manner that can readily be retrieved as well.
So what now?
- Do your due diligence and develop policies on CEMs and train your employees.
- You may want to obtain express consent.
If you are simply sending email to your existing customers (implied consent) or those who actively signed up on a compliant web-form (express consent), you are probably OK to continue operating as you already do.
Just be very aware of that two year time period for implied consent that does run out.
Many companies are choosing to put processes in place to either obtain (or re-obtain) express consent via a clear opt-in form or link, in order to ensure that they are compliant. This is why so many companies are now sending you an email asking you to opt-in to their email lists. Some are offering prizes and contests to entice subscribers to provide express consent. Why? Because express consent never expires unless revoked. Whereas implied consent expires after two years.
Resources and Further Reading
- Canada's Anti-Spam Legislation Website
- There is a good FAQ page on the CASL website
- Bennet Jones has a good site that talks about CASL
- If you are a charity or not for profit, you should read Miller Thompson's article on the subject