Canada’s Anti Spam Legislation (CASL) arrives on July 1, 2014. Described as Canada’s law on spam and other electronic threats, we Canucks finally get our version of the United States CAN-SPAM legislation. While CAN-SPAM covers e-mail only, Canada’s law steps further by covering a broader range of activities including e-mail, instant messages, text messages and some messages sent through social media. CASL defines this collective group as commercial electronic messages. CASL may be the most vigorous legislation of its kind anywhere in the world.
credit: Creative RF/ daoleduc
Marketers are familiar with the US CAN-SPAM legislation with its “opt-out” regime where a business may send commercial e-mail until the recipient revokes consent by clicking an unsubscribe link at the footer of the email. Introduced in 2003, the US bill permits e-mail marketers to send unsolicited e-mail as long as it adheres to defined unsubscribe, content and sending practices. Full disclosure of the senders identity and contact info must be included in the email.
The teeth of the CASL lie in its focus on consent (“opt in”) to receive commercial electronic messages as opposed to the softer, more passive “opt out” of US regulations. In other words, the CASL requires that users explicitly indicate that they wish to receive any messages. As of July 1, 2014, marketers must receive the recipient’s consent, either express or implied, for all commercial electronic messages sent in and out of Canada.
What is consent in this context?
• Anyone who receives a commercial electronic message from you must have given you his or her permission (consent) to do so ahead of time
• There are two types of consent:
– Express, meaning someone actively gave you permission to send him or her a commercial electronic message
– Implied, meaning it would be reasonable to conclude you have someone’s permission to send them a message based on a prior business relationship
Express consent is straightforward in its requirement of the recipient specifically agreeing to receive commercial electronic messages indefinitely until revoked by the recipient. Express (opt-in) consent must be identified; the recipient should have a clear understanding of what they are opting in for. An example would be signing up for a newsletter or blog subscription on a website. Businesses collect email addresses through sign ups and express consent is established through this process. Canadian lawmakers will be happy; the recipient knows, understands and agrees to the communications they will receive from the sender.
Implied consent applies to most day-to-day B2B communications. In this scenario, if a business relationship already exists with the person to whom the email is sent, implied consent is established.
Implied consent, unlike express consent, is not indefinite. Implied consent only permits sending commercial electronic messages for two years following the last business situation that created an applicable relationship, such as a purchase. As such, it will be critical to develop a means to track the currency of all relationships upon which any implied consent is based.
Implied consent also applies if the recipient’s electronic address is “conspicuously published”. For example, placing an email address on a website would establish implied consent for any party to communicate with that address. Implied consent also applies if the recipient has disclosed their electronic address directly to the sender, and has not expressly stated that they do not wish to receive unsolicited messages.
CASL goes much deeper than this brief discussion, covering many areas from activities for harvesting email addresses to computer application installations. It is comprehensive in scope and depth. Most plain speak discussion of CASL is published online by law firms, which indicates the devil is in the details and is best interpreted by those that speak legalese.
For our purposes, we believe the takeaway is paying close attention to best email campaign practices to ensure you are compliant. If you are not involved in the practice of spamming your fellow Canadians with irritating business solicitation with no base of an existing relationship you should have nothing to worry about. If you are not buying email lists and maintaining good list management you should have no problem.
This law targets mass market email advertising, largely unsolicited and undesired by all Canadian businesses. These are the advertising bad guys, the dark side of online marketing. For those who still send unsolicited e-mail messages using questionable email lists, your days will be numbered. No doubt, they deserve their just deserts.
March 27 update: this law applies not only to any commercial messages sent in Canada but also any commercial messages RECEIVED in Canada. The fines are $10 million for corporate violators. Other G20 member countries are touted as participating in enforcement, so the impact will be international. This week the story was picked by the Globe & Mail and the Financial Post.
