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CASL – Canada’s Anti-Spam Legislation

Chris Burdge - Jun 13th, 2014

CASL

No not that castle.

I sense that there is a bit of panic going on regarding the new Canadian Anti-Spam Legislation (aka CASL).  I have received 8 emails recently from various companies and organizations asking that I “provide consent”, “opt-in” or “confirm subscription”. Some from companies I know I have subscribed to and others I know I have not subscribed to and a few that lie somewhere in between (implied consent).

As an experiment, I’m not going to opt-in, re-confirm and re-subscribe to any of them. I want to see if they continue to send me emails or not after July 1st.

For any company that has been doing legitimate email marketing up until now, legitimate meaning you have a double opt-in subscribe form on your website, then you need not worry, you have received explicit consent and are acting within the CASL.

The following section from CASL explains it clearly:

Knowing that people and businesses may need to change their practices when it comes to sending commercial electronic messages (CEMs), the legislation includes a transitional provision that relates to the consent requirement. There are two types of consent – express and implied. The transitional provision set out in section 66 of CASL applies to implied consent.

Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs.

In contrast, express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent.

So, everyone please take a breath, check to see what type of email subscribe you have on your site and act accordingly. In some cases it might not be so cut-and-dry. For example if your subscriber list is a mix of explicit consent acquired via your website double opt-in form, as well as email addresses from people you met at a trade show, business mixer, etc. In that case you will need to do some list segmentation. If you have been keeping notes or tagging subscribers as they come in you will know which bucket they fall into and can act accordingly.

Here is the CRTC’s CASL Validation test and the entirety of the legislation for your reading pleasure.

Definitions

  • CASL – Canada’s Anti-Spam Legislation
  • PEPIDA –  Personal Information Protection and Electronic Documents Act
  • CEM – Commercial Electronic Email
  • ESP –  Email Service Provider
  • TSP – Telecommunications Service Provider

Email Best Practices

If you have been following these guidelines then your email subscriber list should be fine.

  • Obtain “express consent” to send CEMs
    • clearly describe the purpose(s) for requesting consent;
    • provide the name of the person seeking consent, and identify on whose behalf consent is sought, if different;
    • provide contact information for either of those persons (mailing address and either a telephone number, email address of web address); and,
    • indicate that the recipient can unsubscribe and make it simple to do so
  • Use ‘double opt-in’ subscription methodology

If this is all a bit too confusing or you’re still not sure if your organization is CASL compliant or not, please don’t hesitate to contact us for a free consultation.

Disclosure: This document was not written by a lawyer. It does not constitute legal advice on the Canada Anti -Spam Legislation. Official information about the legislation can be found at www.fightspam.gc.ca

Chris Burdge is the founder of bWEST Interactive. His passion & profession is helping clients leverage social media to create genuine and lasting relationships with their target audience and customers.

2 Responses to “CASL – Canada’s Anti-Spam Legislation”

JIm

Chris,

A couple of thoughts. I have looked at the segmentation as a 3 bucket system. Explicit, those that you can prove have opted in, those you can prove under CASL that are implied, and those you can prove neither. The last bucket drops off on 1 July 2014. the other buckets stay active but the key is to be able to prove some form of consent. CASL is consumer protection legislation so the onus is going to be on the businesses to prove consent. It will all boil down to well defined business practice and data that can back it up.
I agree the double opt-in is a great example of a good practice.

jim

Reply

    Chris Burdge

    Thanks for your input Jim. Indeed those are the main 3 buckets most will fall into. The implied consent will be the toughest for businesses to prove if challenged. You can’t go wrong with double opt-in. If businesses have been following the law up until now they should be fine going forward.

    Reply

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