What Is the CASL?
In 2010, the Canadian Government proposed the CASL (Canadian Anti-Spam Legislation), and as of July 1, 2017, it has been implemented fully.
CASL is Canada’s solution to what users can consider ‘spam advertising’. Spam can be defined as the influx of unsolicited promotional messages that fill users’ electronic message boxes, such as email, text messages and other forms of electronic mail, with the purpose of selling or promoting a product or service. With the new legislation in place, Canada is now sheltering Canadians, in an attempt to reduce such unsolicited promotional messages. It is concerned with the sending of “commercial electronic messages” that may be accessed by a computer in Canada. If a business uses electronic marketing of any kind, it is important to understand this new legislation, as failure to abide can have serious legal consequences.
CASL is an opt-in law that states that businesses operating within and/or selling to Canada are only permitted to send electronic promotional material to those who have given consent to do so. The legislation defines what it accepts in terms of consent, and outlines what must be included in the promotional messages after consent is received.
There are two types of consent that the Canadian government will accept as an individual opting-in to receiving promotional emails: implied consent and express consent.
Express Consent is the simple one. An individual clearly agreed (orally or in writing) to receive emails from you directly. This consent most commonly comes after a purchase, where they provide their contact information for promotional purposes (after being informed of such), or by subscribing voluntarily to a newsletter. Whether the consent was oral or in writing, businesses are recommended to keep a record of the date of consent, along with the type of consent received. Express consent does not expire until consent is revoked (verbally or unsubscribing), so a business can continue to send promotional material to an individual until they request it to be stopped.
Implied Consent is when a person provides consent indirectly, but there is no given reason not to supply the messages. Examples include individuals interacting with a business on their own accord (inquiry or purchase) and individuals who publicize their contact information with no qualms about promotional messages. Also included are those who have a continued active business relationship with the company, or individuals who provided their contact information to you through networking.
The expiry for implied consent is dependent on the type of consent given. For purchase, the implied consent is valid for 2 years, while an inquiry for a product or service is only 6 months. After implied consent expiry, if the subscriber hasn’t “renewed” their consent after the expiry, your business must take the client off the contact listing.
I have consent, now what?
Within every message you send to an individual with promotional or selling intent, the legislation states you must have certain pieces somewhere within the message.
There are three main principles to the legislation:
- Consent – As discussed above, you must have either express or implied consent from an individual. This means that they either need to check a box willingly agreeing to receive communication, sign a form agreeing, or verbally provide a business with their contact information for promotional material.
- Identification – Businesses must identify themselves clearly in their message, including name, phone number, address and postal code. Wording and imagery, both in the subject line and actual message content, must not be misleading to the receiver regarding who they are receiving messages from.
- Unsubscribe – The option to be removed from an email list must be present on every digital message received by an individual. The link to unsubscribe must be working and the process to be removed must be easy to understand and follow. Once the unsubscribe process is initiated by the contact, they must be removed from the lists within 10 days of unsubscribing.
It is important to ensure that these three main principles are followed, as failure to comply could result in a severe fine, and individuals who notice have the ability to sue.
I’ve been email marketing for years, why do I need to change now?
The legislation itself is new but has been in the works for the past 5 years. The CASL is enforced by the Canadian Radio-television and Telecommunications Commission (CRTC), Competition Bureau and the Office of the Privacy Commissioner. These governing bodies make the legislation apply to all companies based in Canada, and anyone in correspondence with Canadians. Failure to adjust your email marketing to comply with the new laws could end up putting your business in a bad financial spot.
It is designed to reduce the amount of unwanted emails individuals receive. While it might seem like a damper on your business’ email marketing campaign, demonstrating that your business is up-to-date with legislation and cares about its clients, reflects well from a consumer standpoint.
I should be fine, Someone Else is in Charge of my Company’s Marketing!
Email marketing and other electronic messaging software or applications, such as MailChimp, might not be aware of the new changes, as they are sometimes located in other countries. It is important to check in closely with your service provider and ensure you adjust your messages and settings accordingly to ensure compliance. The terms and conditions you signed onto with the company most likely include a clause that states that in the case of non-compliant terms, the liability is on you, not them.
If you have hired a third-party marketing company, there’s no harm in following up with your contact to ensure they are aware. Much like the conditions in software and application, it is your business that would be at fault if your marketing is not compliant with regulations.