By: Richard Toker, richcontent.ca
The new CASL Legislation went into effect July 2014; are you ready? This anti-spam legislation is changing the way everyone does their email marketing. If you fail to learn the rules and comply, you may face serious monetary penalties. This post will show you how to prepare for this tectonic shift in Canada’s email marketing landscape.
- Law took effect July 1, 2014
- Enforcement by three agencies (CRTC, Competition Bureau, Office of the Privacy Commissioner of Canada) began July 1, 2014
- Individuals who receive spam starting July 1, 2017 may raise private lawsuits
- July 1, 2014 – July 1, 2017 is a three-year transitional period during which the normal 2-year implied consent for existing business and private relationships has been extended to 3 years to ease the burden on businesses
- July 1, 2014 – July 1, 2017: Period where anyone conducting digital marketing should reach out for express consent from all contacts and implied contacts
Express vs. Implied Consent
While express consent (opt-in) is preferable and eliminates the most risk, it is not the only acceptable form of consent under CASL. Implied consent is still acceptable under certain circumstances and will continue to be so under the new legislation. Although marketers may rely upon implied consent in some circumstances (existing business and non-business relationships), these are bound by certain prescribed requirements and are time-limited. If using implied consent, marketers will have to be vigilant in tracking those consents and their time limits as the burden of proof rests with the organization sending a commercial electronic message.
As well, express consents collected under PIPEDA that meet the affirmative consent requirement under CASL (e.g., person must have checked a box or other affirmative action equivalent) are grandfathered. But if companies are in doubt as to how they collected consent, they would be wise to recollect consent.
Penalties for Violation
Penalty fines for those in violation of sections 6-9 of the legislation range from a maximum penalty of $1 million for individuals to $10 million for businesses.
Who is Liable?
Individuals and businesses are liable and can face penalties for violation. Within organizations directors, officers, agents and signatories of a corporation can be liable, if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation.
Action Plan for Marketers
Clean your Email Subscriber Lists
CASL will hit your mailing list hardest. From July 2014 onwards you can still send email to established business relationship recipients (within the limited time period allowed) but you should only email new subscribers who have opted in to receive your communications in compliance with the CASL guidelines. While there are a handful of exemptions to the consent rules, if you haven’t done so already, it’s time to clean your mailing lists and identify “official” subscribers. Refer to the Canadian Marketing Association’s Guide to Canada’s Anti-Spam Law for full details.
What You Should Do…
…If you use email to communicate with anyone:
- CASL has very specific requirements regarding what constitutes express consent. Marketers should review the rules to make sure they comply.
…If you have NO opt-in subscribers:
- Create a subscribe option for your website
- Email your existing mailing list and request that they opt in
…If you have a mixture (opted and not):
- Extract opt-in subscribers
- Email the remainder of readers an important PLEASE OPT IN message
- Draft a new mailing list (opt in only)
Social Strategy Changes
The Regulatory Impact Analysis Statement explains that although CASL is not specifically meant to cover social networks (such as LinkedIn and Facebook), it could capture direct messaging within the networks. This is a gray area (for now) — marketers should proceed with caution. Now is a good time to reevaluate your social media sharing strategy. Some of your activity may be acceptable but if you currently use social media to harvest emails and target site visitors with ads you may need to change your tactics.
What’s ACCEPTABLE according to CASL?
- Tweeting, posting and commenting
- Sharing with those who’ve liked and followed you
What’s UNACCEPTABLE according to CASL?
- Sharing with those who only visit your pages without opting in
- Re-targeting casual site and account visitors for EMAIL HARVESTING
Educate Your Staff
If you run a business and market your services you may need to educate your team. Training your staff to comply with CASL may sound extreme but it may also be necessary in order to avoid penalties. Ignorance of this legislation is not a defense.
There are many specific requirements to understand and comply with such as:
- Consent may be obtained orally or in writing
- Consent must include the name by which the person seeking consent carries on business
- Consent must include the mailing address, and either a phone, an email address or a web site of the person seeking consent or the person on whose behalf consent is sought
- Recipients who unsubscribe must be unsubscribed “without delay” and no later than 10 business days after asking to be unsubscribed. And so on.
How to Train Your Staff:
- Host a training session in your office. Bring in a CASL-knowledgeable professional
- Consider private training or consulting for your communications manager(s)
- Hire a professional!
Consider preparing a CASL Guidelines document for your marketing staff. This can be used as their reference whenever they are unclear on what CASL allows them to do or not to do. Appoint A CASL Manager.
If you do not have a marketing manager, now might be the right time. This manager will need to be well versed in CASL legislation in order to guide your team adequately in compliance. This manager also should regularly check for CASL amendments as the legislation takes hold over the coming months and years.
The tips above should have you on the right track to CASL compliance fast and keep you out of trouble. If your email marketing needs an overhaul, act fast, time is running out.
- Canada’s Anti Spam Law
- Government of Canada Anti Spam site
- Government’s Regulatory Impact Statement
- Government Regulations pursuant to CASL
- CRTC Regulations for CASL
Industry Partner CASL References: