Email marketers: CASL is coming - are you ready?

Businesses that are using email marketing (or voice, text, video, or audio messages) to promote their business to individuals are going to have brand new rules to follow when CASL comes into effect on July 1, 2014.

What is CASL?

CASL is the Canadian Anti-Spam Legislation that was passed in December 2013. It’s considered to be the world’s toughest anti-spam legislation. The law applies to all commercial electronic messages (including emails, texts, audio, video and may even apply to private messages on social media) for any organization that:

  • is located in Canada,
  • uses an email provider based in Canada,
  • or have recipients that live in Canada (or an email address that ends in .ca).

Here are some key facts:

  • Personal relationships are exempt; also charities and political parties
  • Not-for-profits are not exempt (e.g., community associations, soccer clubs)
  • Fines up to 1M for individuals; 10M for organizations (per incident)
  • Burden of proof to establish consent is on the sender
  • CRTC will publicize the list of complaints (like PIPEDA)

The legislation was passed with a built-in three year transition period for implied consent (unless revoked). However, complaints will be taken right away. Therefore, it’s important for businesses to be ready on July 1, 2014.

COMPLIANCE - what you need to know

A huge component of the CASL is consent. Consent cannot be opt-out (pre-checked box); double opt-in is ideal (submit email address, confirm with subscription by clicking on a link). Consent also may not be tied to the terms of a sale.

Implied Consent

There are provisions for implied consent to be obtained in the legislation. However, there is a significant downside in that proving implied consent will be administratively onerous to track and manage. Implied consent exists when you have a business relationship with the subscriber - clients, associates, networking group contacts).

Because consent is implied in these relationships, documentation of the start and end of the relationship must be retained. When, where, and how you met should be recorded, particularly if the relationship develops through a networking group.

The biggest challenge with implied consent is that consent expires 2 years after the end of the relationship. This can be challenging to define depending on circumstances. It may be even more challenging to administer given that you may be unaware that the relationship has ended (e.g., the person doesn’t renew their membership to the networking group where you met).

Express Consent

The gold standard of consent is express consent. It is the embodiment of permission marketing, which has been the best practice in email marketing since Seth Godin coined the phrase. Express consent means that an individual has specified in some way (verbally, in writing, web subscribe form) that they want to be on your list.

The biggest advantage of express consent? It doesn’t expire, unless it’s revoked!

Like implied consent, documentation of express consent is required in case of a complaint. For verbal consent, send a follow-up email, or enter the email address into your website’s web form if you are set up for double opt-in. A note in your organization’s customer relationship database (CRM) or email marketing system is also sufficient when enough details are given (date, event, brief description).

Email marketing compliance

There are several other requirements to achieve compliance with CASL.

  • The sender identity must be clear. It needs to be easy to tell who has sent an email - whether it’s an individual or organization. There are several places where identification can be shown: sender email name, branding in the email header, and/or in the email footer with mailing address and other contact information.
  • A mailing address (can be P.O. Box) must be listed in all email marketing. The address will give your business more legitimacy and home-based businesses have the option of using a P.O. Box to preserve privacy.
  • Your emails must have an unsubscribe mechanism (one-click is ideal). Even some multi-step unsubscribe mechanisms may be considered in contravention of the law if they are deemed too onerous for users to complete the unsubscribe process. Revoking access to someone’s email address needs to be easy.
  • Unsubscribes must take effect within 10 days (immediate is best). Most email marketing systems work immediately. If yours does not, or if you have a manual process, it is imperative that the process be completed within 10 days. (Consider eliminating any manual processes related to email marketing subscriptions by using an email marketing system.)
  • All emails must include a permission reminder. A permission reminder is a short statement of why the recipient received the email: “You are receiving this email because….” Including such a statement can help prevent unnecessary complaints.

What you need to do to prepare

There are a lot of different factors involved with the CASL legislation; here are a few basics to get you started:

  • Get permission - always.
  • Make it easy to unsubscribe.
  • Clean your list(s) before July 1.
  • Use a proper email marketing tool (Mailchimp, Constant Contact, Aweber, Infusionsoft - not Outlook or other web/desktop email clients).
  • Run a win back campaign (ask for re-subscribes; give incentive). These campaigns can only be run prior to July 1, 2014.

Want to learn more?

Canada’s Anti-Spam Legislation is detailed and may be require fairly complex compilance measures for some organizations. The following resources can give you more information about your organization’s specific situation.

The Email Marketer’s Ultimate Checklist for Canada’s Anti-Spam Law Update [PDF], WhatCounts 
CASL Survival Guide, Elite Email
Canada’s New Anti-Spam Law: CASL, Cornell On Law
Canada’s New Anti-Spam Legislation: What you need to know to comply, Gowlings (Webinar recording; requires registration)  

If you have questions about Canada’s Anti-Spam Legislation and your email list, join our email list for a special offer to help you get ready! We can help assess your organization’s readiness for the changes.

A version of this post first appeared on the Women’s Business Network of Ottawa blog.