Is Your Small Business Ready for Canada’s Anti-Spam Legislation (CASL)?
Do you market to your clients via email? The Canadian government is clamping down on unsolicited or unwanted electronic email messages and what you don’t know WILL hurt you and your business.
Effective July 1, 2014, Canada’s Anti-Spam Legislation (CASL) will come into effect with some very strong legislation regarding commercial electronic communications. With potential penalties ranging as high as $10 million, this legislation simply cannot be ignored.
A commercial electronic message (CEM) is any message with the purpose (or one of its purposes) of encouraging a commercial activity. By definition, this legislation will apply to such commonly used electronic communication tools such as emails, newsletters, IM accounts, text messaging and some social media activities.
In order to send a CEM, CASL will now require that you secure consent from the recipient prior to communicating with them electronically. There are two types of consent according to this act: Express & Implied.
Express Consent:
Express consent is the ideal, according to CASL. In this case, a recipient has actively opted-in to receiving electronic messages from your business. This consent may be obtained verbally, in writing, or electronically. Retaining and being able to readily access the specific consent is also important as the onus is on the sender to prove they have obtained consent. Record keeping is vital.
In order to have achieved express consent from recipients, the request must meet the following requirements. The request should:
- Clearly and fully identify why consent is being sought (e.g. – for the purpose of marketing electronically).
- Provide information about the person seeking consent, including your name and contact details.
- Include a statement that consent may be withdrawn at any time.
It should also be noted that if you’re acquiring consent through an online sign up form, the request must not default to an opt-in. Instead, customers must take that step themselves. This means you cannot pre-check form fields to obtain consent. Here is an example:
□ I agree to receive Business ABC’s newsletter containing news, updates and promotions.
Note that the box above is not automatically checked off. The customer must actively take the step of checking that box themselves.
CASL also requires all CEMs to include an “unsubscribe” mechanism so the recipient can easily opt out of receiving future communications. Recipients may withdraw their consent at any time.
Implied Consent:
CASL also allows you to email someone if you’ve received “implied consent,” meaning you have an existing business or non-business relationship with them, even though they never explicitly stated that they want you to email them. They must have engaged in a business activity with you (e.g. – bought your product, inquired about your services, etc.), within the previous two years from the date the message is sent. If they engage in another business activity with you in the future, you’ll then be able to email them two years from that date. This form of consent is not preferred, as it is more subjective and open to interpretation.
Transition Period:
There is a provision in the act that allows for a transition period in gathering consent. If a sender has an existing business relationship or existing non-business relationship as of July 1, 2014, it is assumed that you will continue to have implied consent for the duration of the first three years, until July 1, 2017.
Be aware that after July 1st, 2014 CASL legislation will NOT allow you to send a CEM to a third party requesting their consent to receive email as that request itself would breach the act.
In the next blog post, we’ll offer some specific steps your small business should take in order to prepare for CASL.
Note: this article was designed as an aid to alert you to the coming legislation and its immediate impact on you and your business. They should not be considered legal advice. It is vital for you to independently review the legislation and/or discuss it with your professional advisors so that you are fully aware of all aspects thereof.