On July 1, 2017, Canada celebrates its 150th birthday. The date also marks the end of the three-year CASL grace period.
Canada’s Anti-Spam Law, or CASL, established a strict regime for the sending of marketing and promotional emails. CASL was established in 2014, and this July, the law will become a lot more impactful for businesses. It encompasses more than just emails — the law applies to SMS and messages sent via social media as well, collectively known as commercial electronic messages (CEMs). CASL has been cited as the toughest anti-spam legislation in the world today. If you are a U.S. business emailing prospects in Canada, the law also applies to your organization. CASL supersedes CAN-SPAM, and many marketers are still confused by it.
In less than two months, the grace period that allowed businesses to rely on implied consent based on a prior relationship will come to an end. This means companies only have a short time to obtain express consent to continue communicating with certain recipients.
How do you actually implement compliance across your organization, and set yourself up to prove it if ever investigated? What kind of record keeping is in place?
According to Fasken Martineau’s CASL Survey Report, many fundamental aspects of CASL are still not well understood. In fact, only 7% of marketers believe that commercial newsletters providing helpful information without expressly selling a product or service did not require consent to be sent, but this is simply not true.
Implied consent can now expire. This means that senders will no longer be able to rely solely on implied consent, and will have to take recipients off their mailing lists unless 1) the sender obtained express consent during the transition period, or 2) another exception such as implied consent under an existing business relationship arose during the grace period and the recipient has not opted out. For a purchase of a product or service, implied consent is valid for two years. If it was an inquiry about a product or service, the consent is valid for only six months.
Back in 2014, you may have taken careful pre-CASL preparations to evaluate your email communications and mailing lists. Now is the time to revisit and confirm whether your organization is still sending emails on implied consent. If it is, then before July 1, you need to get express consent from those recipients or confirm whether there is another basis on which you can send electronic messages.
Asking for permission and sending emails the legal way are vitally important, and the onus of proof is 100% on the sender.
Implied vs. Express Consent
There are two types of consent, providing different degrees of access.
Under the new regulations, you may communicate with an individual if you have a previous business relationship with them or if they provide express consent. A business relationship provides two years of consent from their last purchase date. If an individual requested information from your business, then you have implied consent to communicate with them for six months. You can gain express consent if they later opt-in to receiving commercial electronic messages from you. The opt-in box and associated copy must meet the exact specifications of the legislation — in other words, the box must not be pre-checked — and must clearly state that they are agreeing to receive your commercial messages. Express consent does not expire but can be revoked by unsubscribing from your organization’s CEMs.
In terms of your email content, there are two main requirements to ensure compliance with CASL:
- An unsubscribe link that will remove someone from your list within 10 days
- Clear identification of who is sending the email including your business name, and at least two ways to contact you (physical address, phone number, website, and/or email address)
After July 1, you may only send to recipients with express consent or whose implied consent is currently valid under CASL — in other words, 24 months after a purchase or six months after they make an inquiry.
CASL Litigation Expected to Rise
Under the ‘private right of action’, many lawyers expect a surge in CASL litigation, including class actions. There are major penalties for spammers, including fines of up to $10 million per violation. Every organization should educate themselves on legal email marketing practices to avoid these massive fines. Individuals at a company — including directors, officers, and agents — can be held liable for CEMs sent by an organization, and therefore can face personal class action lawsuits.
The Canadian Radio-Television and Telecommunications Commission (CRTC) will investigate senders who are not in compliance with CASL. After July 1, any individual will also be able to sue a business they believe is sending spam emails.
What To Do Now
You have less than two months to ask for express consent from those in your lists or risk losing them. Review your contact lists to determine the recipients you’ll need to seek express consent from, at least those whose implied consent was afforded by the grace period.
Do your due diligence: if you took all reasonable care to make sure your organization is compliant with CASL, and can prove it with appropriate documentation, then you may avoid reasonable liability or excuse violations. This involves not only putting in place procedures to achieve compliance with CASL, but also reviewing them periodically and amending them to make sure they meet the requirements of the law. Conduct regular audits of your compliance, as well as any third parties sending emails on your behalf.
Make sure you’re removing email addresses from your list as soon as their consent expires. Your emails need to contain a working unsubscribe link and you must honor unsubscribe requests as quickly as possible. This cannot take more than 10 business days.
6S Marketing can ensure your systems are compliant, help upgrade subscribers from implied consent to express consent, and institute risk management strategies. We can help you understand and respond to the challenges posed by CASL. Reviewing and updating your lists can be an arduous task. Marketing automation is an ideal solution for subscriber list management, and to help build, manage, and update contact lists.