On July 1, 2014, the regulations that govern commercial email in Canada are changing — and unless you want to find yourself on the wrong side of the law, you need to understand what steps your business may need to take. If you currently send email marketing to Canadians or may in the future, here’s what you need to know.
It’s not just about spam.
Canada’s Anti-Spam Law affects more than just what you might think of as “traditional” spammers; it’s comprehensive legislation that will affect anyone who sends commercial email — and for email marketers, the part of the law that relates to them comes into full force on July 1. Most importantly, as of that date the sending of unsolicited commercial electronic messages will be a violation of law.
The penalties are serious.
CASL violations are punishable by administrative penalties (e.g., fines) that are meted out on a per-violation basis — as high as $10 million per violation for businesses. Notably, a corporation’s directors, officers, and agents can be liable if they had any role in sending the offending message.
Knowing whether you’re sending a CEM is critical.
Canada defines CEMs, or commercial electronic messages, in a very specific way; knowing whether your message is considered a CEM is important. In broad terms, a CEM is any message sent with the purpose of encouraging the recipient to take part in commerce — this relates to the message’s content, as well as how links and even contact information are presented. For example, the inclusion of a logo or contact information in the signature line of an email does not automatically make the message a CEM; however, language that promotes a product or service to encourage the email recipient to make a purchase does.
Boiled down, if any part of the message makes an offer to buy, sell, trade or rent products or services, or promotes a business or person who does any of those things, it’s a CEM. And that means it’s regulated.
There are three requirements that must be met to send a CEM.
None of this means you can’t send email marketing messages anymore; it does however mean you’ve got to follow CASL’s rules about it.
The law requires you to:
1) Obtain consent to send the message before you send it
2) Provide identification
3) Provide an opt-out mechanism.
Most marketers understand how opt-out or “unsubscribe” mechanisms work, and there’s nothing too complicated about including your full contact information in every CEM — but consent will likely be the most difficult part of CASL to comply with.
You must prove you have consent, and you can’t presume you do.
Whether you obtain consent orally or in writing, the burden is on the CEM sender to be able to prove they have consent to send the message — and this means good record-keeping, because you must be able to show when consent was obtained, why it was obtained, and precisely how it was obtained.
The “how” is pretty important here as well, because the law is designed to presume you don’t have consent to send a CEM. For example, a pre-checked box on a form that gives consent to send a CEM does not count, because under the law a pre-checked box presumes consent. There must be, in the words of the legislation, “positive action” taken by the receiver to show their consent, e.g. opt-in, not opt-out.
Referrals count, but must be documented well.
An exception to the requirement for consent exists to cover referrals, as long as they’re made by someone with an existing relationship with both the sender and the receiver of the CEM in question. Further, full contact information for the referrer and a message stating the CEM is arriving because of a referral must be included in the message.
There’s a window of implied consent, but it’s limited.
For existing relationships, a three-year transition “window” of implied consent exists under the law, whereby CEMs can continue to be sent. It’s a good time to seek express consent from your recipients — and remember, this transitional period ends immediately if the recipient indicates they no longer wish to receive your CEM.
If you’ve been doing this already, you’re fine.
If your marketing has been sufficiently “opt-in oriented” to have been in compliance with CASL in the past, e.g. you already have what would be considered express consent to send CEMs, (email marketing newsletters and promotions), the good news is you don’t need to obtain new consent from your existing recipients. Consent given before July 1 is every bit as good as that given after — and like the little black dress, express consent never goes out of style. Once you have it, unless the recipient withdraws their consent, you can continue sending your email marketing newsletters and promotions to your list.