Canada’s New Anti-Spam Legislation – The fears and the opportunities

Return to MightyWriteBeing a business owner is not for the faint of heart. Those of us who have chosen this path understand the need to be fearless at times.

Michael Fournier Photography ©2014As thick-skinned as I like to think I’ve become, I’m admittedly a little unnerved by Canada’s new Anti-Spam Legislation (CASL) that comes into effect July 1. If you haven’t heard, CASL will make Canada one of the toughest places for sending out commercial electronic messages (CEMs). A CEM is described as any message whose purpose is to encourage the recipient to participate in commercial activity:

-offers to purchase or sell goods and products
-offers to provide a business, investment or gaming opportunity
-advertisements and promotions, including in relation to a person

Consent is key – implied or express

CASL strives to reduce spam by prohibiting the sending of CEMs to people who haven’t consented  to receive them.

The issue of consent rests on what’s described as implied or express consent. CRTC, one of the government agencies responsible for enforcement of the law, has some good information, indicating that implied consent occurs when there’s an existing business or non-business relationship. Express consent is when someone has opted in to receive your communication through some kind of online form or other mechanism. There’s a 3-year grace period for getting express consent from those you have previous implied consent from. There’s time limits on implied consent (two years after the relationship ends unless otherwise specified) while express consent is indefinite unless the recipient unsubscribes.

It’s important to understand that the legislation applies to more than just email. Text, video and audio messages as well as some content published on social media platforms also fall under CASL. It appears that you can continue to post promotional messages on your social media sites but the legislation applies to direct messages you send to your connections, friends or followers.

The government has provided a number of resources about the new law as well as some ready-to-use articles that provide the highlights. I’m not a legal or CASL expert and am only sharing what I’ve learned along with links to resources I’ve found helpful.

Must have’s as of July 1

As of July 1 any CEM you send needs to have implied or express consent and should include clear identification and contact information:

-Your business name, if different from your name and the name of anyone else on whose behalf or business you are sending the message.

-Your mailing address as well as one of – a phone number to access an agent or a voice messaging system, an email address, or a web address for you or the person on whose behalf you are sending the message (must be valid for a minimum 60 days after sending the message). If you’re using a link to provide the required information, that needs to be prominently displayed in the message.

-An unsubscribe mechanism for the recipient. These need to be processed within 10 days.

More questions than answers

I’ve participated in several CASL webinars which have helped reduce my fears but there are a still a lot of exceptions and grey areas that will likely become clearer over time.

Here are a few questions from the webinars that touch on some of the issues:

Does registering for a webinar give implied consent? Yes.

Can I send a CEM to someone who has posted their email address on a website? Yes you may send CEM’s if the individual has not indicated that they do not wish to receive unsolicited CEMs.

Do you need to have an unsubscribe option on emails that you send to recipients who have given implied or express consent ? It appears that CASL requires you to give recipients the option to withdraw consent or unsubscribe at any time if you are sending CEM’s. This may not be the case if you are conducting regular communication via email related to ongoing business but it may be advisable to update your email signature to include all of the requirements (as above – business name, mailing address, contact information, the option to unsubscribe). I’m continuing to investigate this and will share what I learn.

I’ve just distributed my eNewsletter to subscribers we have implied consent for due to an existing or past business relationship (some of which may be more than 2 years). We promoted CASL and included an unsubscribe option but did not ask for express consent. Can we assume we have implied consent if they don’t unsubscribe? Generally no although it appears that implied consent will cover most businesses for the grace period. The liability in this approach lies in having a fragmented mailing list where implied consent could still be challenged. You’ll need to have processes in place for documenting how consent has been received to determine your risk.

Request for Consent for the Mighty eNews

The answer to this last question is the reason we’ve decided to request express consent from the MightyWrite eNews email list at this time. If you aren’t a subscriber to our eNews, this would be a great time for you to sign up!

CASL’s silver lining

All fears aside, CASL does create opportunities that will  benefit consumers and businesses:

-It will reduce spam and the lost productivity as a result.

-It gives consumers clear choices for how they want to interact with businesses and in particular, when they want to engage with them in the buying cycle.

-It forces businesses like ours to work harder to be more relevant and useful – if we want to keep our subscribers.

-It opens up opportunities for other creative, and possibly more thoughtful, human-driven approaches for reaching potential customers. Face-to-face and voice-to-voice approaches as well as good old regular mail aren’t covered by the new legislation.

-Surveys aren’t considered CEMs so this is another way to reach out to potential customers to collect legitimate research about their wants and needs – without trying to sell them something or offer an incentive (which would be considered a CEM).

-It will also force businesses to put in place processes for continuous improvement in how we interact with our audiences according to their wishes.

The bottom line

As of July 1, you won’t be able to use CEMs as your first point of contact with new prospects. Sending a message to someone asking them to give you permission to send them a CEM is also prohibited in most cases after July 1.

There are exemptions including those that apply for registered charities, political candidates, personal and family relationships as well as some business to business communications, third-party referrals and more. You may want to get legal advice on how CASL affects you and your business.

There are a number of organizations providing free information and resources to help businesses navigate the CASL waters:

The Canadian Chamber of Commerce hosted a free webinar and has provided an overview.

Getting ready for CASL: What you need to do – A checklist I helped draft for eTouchServices.

Canada’s Law on Spam and other Electronic Threats – A deeper dive into the legislation and specific requirements for compliance.

Canadian Radio-television and Telecommunications Commission (CRTC) – Provides highlights and details of what you need to know about CASL

What steps are you taking to reduce your fears related to CASL? I would love to hear your stories (but be wary of sharing them as a CEM). Good luck!

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