One of the most important changes in marketing is coming to an inbox near you. No, it’s not Content Marketing World in September, or one of the thousands of emails from your LinkedIn Groups. No, this upcoming change could cost you hundreds of thousands of dollars if improperly planned. This act, the Canadian Anti-Spam Legislation (CASL), was created with users in mind, and hopes to reduce the amount of unsolicited Email in Canadian inboxes from British Columbia to Newfoundland. How can you prevent fines and penalties as a result of CASL?
What is the Canadian Anti-Spam Law (CASL)?
The Canadian Anti-Spam Law is Canada’s law prohibiting the distribution of unsolicited and unrelated email, passed in December 2010 and, following a Governor in Council order, it will enter into force on July 1, 2014. Once the law is in force, it will help to protect Canadians while ensuring that businesses can continue to compete in the global marketplace. On January 15, 2015, sections of the Act related to the unsolicited installation of computer programs or software come into force.
What Does the New CASL Prohibit?
When the new law is in force, it will generally prohibit the:
- Sending of commercial electronic messages without the recipient’s consent (permission), including messages to
- Email addresses
- Social Networking Accounts
- Text messages sent to a cell phone
- Alteration of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
- Installation of computer programs without the express consent of the owner of the computer system or its agent, such as an authorized employee;
- Use of false or misleading representations online in the promotion of products or services;
- Collection of personal information through accessing a computer system in violation of federal law (e.g. the Criminal Code of Canada); and
- Collection of electronic addresses by the use of computer programs or the use of such addresses, without permission (address harvesting).
Implied vs. Express Consent
A big factor in the CASL law is that of implied and express consent in Commercial Electronic Messaging (CEM). In order to understand the variations and values, start by ensuring that your clients, and their data-base and marketing teams, are crystal clear on the definition of CEMs under CASL. They also need to fully understand the two types of consent recognized by CASL:
- Implied consent is time-limited and involves an existing relationship or conspicuously published business contact information. (24 Months)
- 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.
- Express consent is the new gold standard. It must be written or oral and recorded. Once a customer provides express consent, there is no time limit to the contact a business can have with the customer unless the customer opts out.
- 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
Thanks to What Counts Email Marketing, here is a brief guide to obtaining consent under CASL. Express consent must be obtained via a CASL-compliant opt-in form. Wondering if your current form works or if you’ll have to create a new one? Here’s the goods on what the Canadian law requires you to include:
An affirmative action taken by the subscriber to sign up.
- Entering an email address and clicking submit.
- Checking a box requesting emails and clicking submit/continue. Note: A pre-checked box is not an affirmative action.
Does CASL Apply To US Businesses?
Yes, CASL will apply to any business or individual that does not follow the regulatory guide set forth by CASL. Montreal-Based Email Marketing Platform Cakemail created a great flowchart that lets you decide what is and what is not spam, and whether or not you are liable to be reported. The easiest way to understand whether the law applies to you is to ask the following question:
Is the intended recipient opening a commercial message on a computer located in Canada? If so, the law applies to you.
What Fines and Penalties Apply to CASL Violators?
Administered by the Canadian Radio-Television and Telecommunications Commission, fines and Penalties under CASL are broad and all-encompassing. From the “Spammer List” to the fines reaching up to $10,000,000 for corporations, violators are at risk for a painful hit from the CASL hammer. Thanks to Davis LLP, Canadian Lawyers since 1892, we would like to share fines and penalties under CASL.
- Administrative Monetary Penalties
- Up to $1 Million for Individual Spammers
- Up to $10 Million for Businesses and Corporations
- Risks and Non-Monetary Penalties
- Having your organization publicly identified as a violator of anti-spam law can harm your brand and reduce customer and public trust and customer loyalty
- Reputational risk
- What organization wants to be known as a “spammer”?
What Does Your Email Need to Include for Compliance?
In regards to the new requirements for your email marketing collateral, HubSpot offers insight into the basics of Email content requirements. All messages you send must include the following three points:
- Identity: You must identify yourself as the sender of the message, and give the identity of anyone you’re sending it on behalf of.
- Contact Info: You must provide contact information that lets the recipient easily contact you.
- Unsubscribe Mechanism: You must give the recipient a free and easy way to unsubscribe via a link to a website. That link has to be valid for at least 60 days, and you have to make sure the unsubscribe request is honored within 10 days.
CASL vs. CAN-SPAM
Comparing the United States’ CAN-SPAM to Canada’s CASL, what do you need to know? What will you need to change? Thanks to Dentons Global Law Firm, the following Slides will assist in comparing the two laws.
Final Notes on the Canadian Anti-Spam Law
Modern Marketing Partners, although interested in sharing the news and insights on the Canadian Anti-Spam Laws, is in no way offering legal advice into the specifics of CASL. For your own reading, please visit the Government of Canada’s Official Website on Anti-Spam Legislation. To clarify, this information is in no way to be considered legal advice, and should be considered for entertainment purposes.
We urge you to share with your colleagues this information and to read further into CASL by clicking any of the previous links. Contact us to learn more about effectively and legally marketing to Canadian companies.
Related Email Marketing Resources
- 6 Email Essentials for Successful Campaigns
- Email Marketing Statistics and Glossary
- MailChimp Guide to CASL
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