Everything a Canadian Business Owner Needs to Know About CASL

Everything a Canadian Business Owner Needs to Know About CASL

“Canada’s new anti-spam legislation (CASL) helps protect Canadians while ensuring that businesses can continue to compete in the global marketplace.”

– From the CRTC website

Starting on July 1 of this year, anyone wishing to do business in (or with) Canada will be subjected to the new Canadian Anti-Spam Law. The law, which spans hundreds of pages and seems to be composed almost entirely of legal doublespeak, has made this law difficult for even the most seasoned lawyer to interpret. Couple that with the broad definitions it contains, and the million-dollar fines that accompany an infraction, and you’ve got yourself a recipe for (potential) disaster.

Instead of diving into the legislation, let us give you the quick and dirty of it. Please remember that, while we have consulted our own lawyer on this issue, this shouldn’t be construed as legal advice. Damnit Jim, we’re internet marketers, not lawyers!

The Rundown

1. The law regulates the sending of commercial electronic messages. A CEM is any message that encourages participation in a commercial activity, so this will include emails, newsletters, instant messages, text messages, and messages sent using a social media network or an online forum.

   • The only forms of communication not covered by this law are in-person, telephone, postal mail, and faxes.
     

2. The legislation defines commercial purpose as “intending to advertise, promote, market or otherwise offer a product, good, service, business or gaming opportunity or interest in land”. If your message contains an obvious commercial message, hyperlinks to a business website, or contact information for a business, then your message is a CEM and must comply to CASL.

   • Most companies require that employees include the company contact information in their email signature, thus rendering all communications from that email address as CEM’s.

   • Businesses are responsible for the CEM’s sent by employees; any legal action taken will be against the company and not the specific employee that did not comply with CASL.
     

3. All CEM’s must include a way for the recipient to unsubscribe from your messages, and you must comply within 7 business days of receiving the unsubscribe request.
   

4. The main tenant of this law revolves around the issue of consent.  

   • The onus to prove consent is on the business, not the recipient, in a very guilty-until-proven-innocent way.  

   • Implied consent means it would be reasonable to conclude you have someone’s permission to send them a CEM based on prior relationships. Implied consent could also apply to someone who has conspicuously published his/her email address, say on a website.

   • Express consent means someone actively gave you permission to send them a CEM in writing, through electronic confirmation, or verbally.

   • No matter which type of consent you obtain, you must store the record of the consent indefinitely. As of right now, there is no statute of limitations on a CASL complaint.

   • There is a 3 year transition period, starting July 1 2014, during which implied consent will be automatically applied to parties who are already engaging in a business or non-business relationship.

   • Requests for consent cannot be hidden inside contracts or terms and conditions. Instead, it must be a stand-alone request with its own opt-in.

   • Consent cannot be made a mandatory portion of a business agreement or relationship, and if a current client chooses to unsubscribe from your CEM’s you must find an alternate way to conduct business with them.

   • Consent must be requested on an opt-in basis, rather than an opt-out basis. Canada is the only country in the world that requires opt-in consent in its anti-spam laws.
     

5. Fines for not complying with CASL are 100 times higher than for privacy legislation.

   • CASL outlines up to a $10 million in penalties for corporations and up to $1 million for individuals.

   • There will be a private right of action that allows individuals and organizations to file a lawsuit against someone that they allege has violated the law.
     

6. CASL will be enforced by 3 separate Canadian agencies: the CRTC, the Competition Bureau, and the Office of the Privacy Commissioner of Canada.

   • One of the problems that critics of the law see with this is that agency has the ability to interpret and enforce different areas of the laws, and enforcement will most likely not be consistent among all three agencies.

   • For a detailed breakdown of their roles, please visit fightspam.gc.ca

At the end of the day, the CASL legislation doesn’t have to be the end of the world for your business. While it contains very broad statements and hefty fines, it is also forcing businesses and marketers in Canada to take more care when creating and sending CEM’s. By requiring explicit opt-in for your marketing content you are actually curating a highly-qualified list of prospects, instead of sending out hundreds of generic sales messages and hoping that a few of the recipients convert into customers.

Repeat after me, friends: obtain consent, document it forever, and always include an unsubscribe option.