What is Canadian Anti-Spam Law?
Canadian Anti-Spam Law (CASL) is defined as an act aimed at promoting the Canadian economy’s efficiency and compliance by standardizing certain activities that dissuade the use of electronic media to carry out commercial activities. In other words, CASL seeks to constrain the flow of spam in recipients’ folders as well as outlaw phishing and malware. While CASL doesn’t apply to the commercial electronic messages (CEMs) that are transmitted through Canada, it certainly applies to those CEMs that are sent by organizations based in Canada, Canada-based email providers, or global email marketers sending messages to recipients with a Canadian (.ca) email address. The Canadian Anti-Spam Legislation demands B2B email marketers to receive either implied or express consent before sending commercial messages to their target audience in Canada.
CASL was introduced on July 1, 2014, over a three-year transitional period. This transition period was to allow businesses to transform their implied consent relationships into express consent relationships before July 1, 2017. The law is one of the most complex and trickiest to comply with for digital marketers.
How does implied consent differ from express consent?
According to the CASL, email marketers need consent from recipients prior to sending electronic or text messages. This consent can be of two types, viz. implied and express.
Implied consent refers to an existing relationship with the recipient. For example, if someone has previously shopped from your company, volunteered for it or made a donation to it. It may also refer to the permission to send an electronic message while not specifying whether or not to send unsolicited CEMs. Implied consent may further imply that the recipient has evidently published their email address, provided that they have not indicated any wish not to receive CEMs at the published address and that your content is beneficial for their business or its functions.
On the contrary, express consent implies clear agreement by the recipient of a CEM. It could be in writing or verbal. Express consent is considered if the sender receives a request via an opt-in mechanism like signing up on their website. The recipient should be clear about what they have opted for. The sender should be able to prove that they have received the consent to send CEMs. Recipients have the freedom to withdraw their express consent at any time, following which the organizations need to ensure that their request is fulfilled within 10 business days.
Commercial Electronic Messages – What are they?
A commercial electronic message is one, which aims at encouraging the recipient to take part in a commercial activity. Anything that is directed towards promoting the sales or lease of goods and services is considered a CEM. Also, anything providing business or investment opportunities is considered a CEM. Contrary to that, a message containing hyperlinks to a site or providing information related to business will not be defined as a CEM.
Major Implications of CASL
Private Right of Action
First of all, individuals and organizations hold the right to file a civil action against individuals or organizations charged with violating the CASL. Nevertheless, private individuals do not benefit financially from filing a suit, either in whole or in part.
The Canadian Radio-Television Communications Commission (CRTC) is the chief enforcement agency of CASL, which determines, hears and issues the felonies to apply and gather administrative monetary penalties (AMPs). The law results in a maximum fine of ten million dollars per violation. Various factors are taken into consideration, which together help determine the amount of monetary penalty. These factors include:
- Purpose of penalty
- Nature and scope of infringement
- History of sender
- Ability to reimburse
Implications for marketers and sales professionals
At some places, the Canadian Anti-Spam Legislation is elusive and vague. In such cases, marketing and sales teams may face serious implications.
1. Third-party lists
What becomes a problem for marketers and sales professionals is the blend of stern restrictions and wide scope. Location-based restrictions are one example of the same. It is not possible for companies to find an individual’s location without looking at their personal information or getting in touch with them. Therefore, those selling or using third-party email lists can be penalized in case any contacts on these lists are found trespassing any restrictions of CASL.
2. Extended marketing cycle
The Canadian Anti-Spam Law requires permission from recipients before CEMs are sent to their email address. This further requires a timely response from email recipients or it would not be feasible to gather all consent before actually beginning with the campaign. Sales and marketing teams, thus, need to have proper resources to scour all the leads on time and apprehend all unsubscribes.
3. Social Media
Not surprisingly, CASL is unclear in terms of social media, as different social media platforms operate on different communication models. Thus, marketers remain concerned that their post on a particular social media site might take them to court. It is ambiguous to date what on social media will be considered as consent.
Despite the regulations applying to all email marketers, there are certain exemptions:
- CEMs exchanged between family and friends, whether connected through marriage or blood relationship or voluntarily
- CEMs that are responses to any complaints or requests or inquiries
- CEMs sent to organizations with which you share an existing relationship
- CEMs sent as a result of a legal responsibility
- Telecommunications Service Providers (TSPs) can install programs without consent only if their aim is either to prevent illegal activities or to update devices across a network
- CEMs sent through instant messaging channels such as LinkedIn InMail or BBM messenger. Since these have the unsubscribe mechanisms clearly published on their interface
- Commercial messages sent to listed foreign nations, since only a listed country with similar regulations will open the message in such a case
- CEMs sent by authorized charities or political parties for fundraising purposes
How to send CEMs while adhering to CASL?
In order to ensure that you comply with CASL rules at all times, make sure that you have an updated database in place. The other steps to be followed are specified below:
1. Update the database
Check if the email database of your company is updated and upgraded. Manage all the email source information and date, including where it is from. Determine what kind of consent you have received, and when and how. Create a process and keep a record of everything, including consent date, level, and source.
Your recipients must be well aware of the type of messages you will be sending, such as newsletters, promotional or product launches. They should be able to take an action regarding the opt-in, be it through a checkbox or a blank space for typing in their email address. Email marketers need to include an unsubscribe notice in all future email communications. Besides, recipients should have access to your contact information, whether it is in the form of email, phone or the web.
3. Automate the process
CASL-compliant system is prone to human error if the process is manual. Thus, make sure that you have an automated process that centralizes your email contact and consent database. When you integrate this technology solution with your desktop email application, it ensures that your emails are compliant, no matter if they are from your marketing or sales team.
4. CASL-compliance proof
As an email marketer, you need to have thorough CASL management processes, which could help you prove your compliance with CASL, whether in terms of the type of consent or expiry date or sources.
5. Consent conversion
Now that you are aware that your consent information needs to be updated, you must also confirm that your email database is healthy and growing. For the same, it is recommended that you follow a consent conversion strategy that consistently converts all implied consent into express consent. In order to easily get express consent, you must have a strategy that concerns both relevancy and recent contact. A call center interaction also opens up this opportunity, since a confirmation message in the same includes a link for obtaining express consent from a person.
6. Installation of software
Ensure that you have express consent when you install a computer program or software on someone else’s system. You don’t need to have the same only if you have a court order or are doing it for security purposes.
On July 1, 2017, the transitional period of CASL came to an end, and the private right of action came into effect along with the three-year mandatory review for CASL.