By: Amber Henry
What is CASL?
CASL (Canadian Anti-Spam Law), pronounced "castle", will come into effect July 1, 2014. You do not have to be a spammer or located in Canada for it to apply to you. If you send messages from Canada or to anyone who may read it there, this new law applies to you. Not sure where your recipients are located? You could ask, use geotracking, or see which emails end in “.ca”.
The general purpose of CASL is to prohibit the sending of commercial electronic messages without permission (consent). A commercial electronic message is one that “encourages participation in a commercial activity” regardless of whether there is an expectation of profit. This includes messages to email addresses, social networking accounts, and text messages to a cell phone (Government of Canada).
Consequences can be severe. We are only providing a brief summary of CASL. If you feel this applies to you, be sure to consult legal counsel and take the steps necessary to ready your business. For more information visit: fightspam.gc.ca.
What are the requirements?
There are three main requirements of CASL:
- Proper identification - the sender must be clearly identified and include a valid postal address, and either telephone number, email address, or website which must be valid for at least 60 days after the message has been sent.
- Consent - if your email message does not meet one of the various exceptions laid out in CASL regulations, you must have consent BEFORE you send an email.
- Unsubscribe - include a functional and visible unsubscribe mechanism, which must be processed without delay and within 10 business days. The recipient must not be asked to provide any information other than their email address.
When is consent not required?
There are two types of consent: express and implied. Either can be removed at all times by the recipient through the unsubscribe mechanism.
Express consent is very clear and the recipient has taken an affirmative action to give you permission to send to them. Express consent never expires until the recipient asks to stop receiving the message.
Implied consent is when a relationship exists, but the recipient has not explicitly asked to receive your emails. If you have implied consent, it is in your best interest to send a confirmation email to gain express consent, which never expires. Implied consent under CASL expires after two years. If a recipient has expressed interest in your product as part of the sales process, implied consent expires after six months.
Some exceptions to having consent:
- Responding to a request for quote/estimate
- Messages that facilitate or confirm transactions
- Providing warranty, recall safety, or security info
- Giving information about ongoing use or ongoing purchases, ongoing subscription, membership, accounts, loans, or similar
- Employment relationships or benefit plans
- Delivering a product, good, or service, including updates and upgrades
What steps should I take to prepare?
It is recommended that you do some “spring cleaning” to your lists by creating an opt-in campaign.
Assess if you may be sending to anyone in Canada. Figure out whether you have express or implied consent and track it in your database. Develop a plan to obtain required consent and review your email message to make sure it is CASL compliant.
Starting July 1, 2014, you will need consent from any new client and each message must include identification and an unsubscribe mechanism. Where there is an existing business or non-business relationship that includes commercial electronic messages, consent is implied for three years. It is recommended that you acquire express consent for customers that are on your list through an existing business relationship by July 1, 2017.
In the end, do not be mistaken for a spammer. Maintain the trust and confidence of your customers or clients by following these tips:
- Do not send a message without their consent.
- Provide an opportunity for customers and clients to say no.
- Clearly identify yourself and your organization.
- Be truthful in advertising.
Please keep in mind that the information provided above does not constitute legal advice and should not be used as a substitute for seeking professional advice.
Examples of what to do / not to do:
Can I send out an unsolicited email survey for market info, product usage, etc?
Whether it is permitted under CASL or not, it depends on whether the message is deemed commercial. JangoMail’s Anti-Spam Policy does not allow you to send unsolicited email without prior consent.
Someone gave me their business card. Is it okay to contact them?
Under CASL, you would have implied consent for up to two years. As long as they did not specify their wish to be excluded from receiving promotional emails, it would be okay to send messages pertaining to their role. It is recommended to gain express consent.
Should I do anything with my existing lists?
If you have express consent from all of your existing contacts and have basic records of how and when consent was acquired, you probably will not need to take action with those contacts. If you are unsure of the opt-in status of your lists, or have no records, it is probably necessary to run an opt-in campaign as soon as possible.
Part of CASL requires that the sender be clearly identified. My business is a local franchisee. Our franchisor head office sends commercial emails. Is this okay?
You will need to ensure your customers have consented to receive messages from the franchisor head office, not just the local franchisee.
Is an electronic message that contains a request for consent to send messages considered a commercial electronic message?
Yes, it is. You will want to ensure you are following the guidelines when sending.
I am sending messages on behalf of a charity or political organization to raise funds. Do I need consent?
This is permitted under CASL, but JangoMail’s Anti-Spam Policy is stricter than Canada’s law in this regards. We only permit our customers to send to their own direct contacts with whom they have pre-existing relationships.
Government of Canada, Canadian Anti-Spam Legislation: fightspam.gc.ca