Be advised that this is no way legal advice. This is simply our interpretation of the new Canadian Anti-Spam Law and its application for inbound marketing.
This information has been designed to help you understand how CASL will impact your marketing efforts and what you can do to ensure you are in compliance with these new privacy laws.
We are not lawyers and nothing presented here is, or should be construed as, legal advice.
This information was prepared in collaboration with Christene Hirschfeld – Queens Counsel, Intellectual Privacy Lawyer, BOYNECLARKE. Please contact Christene if you wish to seek legal advice about how CASL will impact your sales and marketing activities.
NOTE: On May 23, 2017, this post was updated to reflect changes to CASL that come into effect on July 1, 2017
Upon introduction in 2014, CASL included a transitional provision that afforded a three-year grace period for implied consent. These transitional implied consents will expire on July 1, 2017.
What this means for you and your business is that you will no longer be able to rely on previously implied consent to send CEMs. Instead, you will have to either:
- Obtain additional express consent from recipients
- Complete a transaction that renews implied consent
With the July 1, 2017 deadline approaching, it’s essential that your organization prepares for the future.
The Canadian Anti-Spam Legislation (CASL) will be enforced starting on July 1, 2014. This aggressive new legislation now strictly limits how business can communicate through electronic messages.
CASL’s anti-spam provisions affect anyone who sends Commercial Electronic Messages (CEM) to, from, or within Canada. If you do any form of email marketing with businesses located in Canada, or you have people on your mailing list who live in Canada, you are subject to these new laws even if your business is based outside of Canada.
There are three federal agencies responsible for enforcement of the CASL laws.
Here’s everything you need to know:
What is a CEM?
Under this new legislation any form of electronic communication – email marketing, text messaging, even how you network on social media can violate Canadian Federal laws.
To legally communicate in a commercial manner with any Canadian email address that enters your database after July 1, 2014, you will need to have their explicit consent and document how and when they agreed to receive your commercial messages.
Obtaining Consent Under CASL
You need to gain a contact’s consent in at least one of two manners.
Implied consent is inferred based on the action a contact has taken. For example, implied consent is satisfied when someone purchases a product/service or makes a donation. Implied consent can also be assumed when a contact makes a direct inquiry about a product or service. In both cases implied consent is only valid for two years after the last transaction or inquiry.
May 23, 2017 Update: The language around implied consent is a little vague. With the July 1, 2017 deadline looming, we suggest now is the time to work toward gaining express consent.
To gain Express consent, you must explicitly ask for the contact’s permission to communicate with them in the future. Once you have gained express consent, it is good forever, or until that contact opts out.
What Satisfies Express Consent?
As a marketer, you need to be aware that CASL legislation changes the way you will be able to collect email addresses- both online and offline.
For a contact to meet the express consent requirements, there are some criteria they must meet. These changes primarily impact the way you communicate on landing pages and email collection forms.
Your signup forms must now have explicit and clear language that asks the contact for their permission to send them commercial electronic messages.
Contacts must take an explicit action to opt-in to receive your commercial communications – For example, you cannot pre-check the opt-in box, the contact must actually perform the action of checking a box or clicking a link
- Your signup forms must clearly state the person, business, and/or organization that is asking for consent
- Your signup forms must contain a valid mailing address and either a telephone number, email address, or web address
- Your sign-up form must indicate that there will be an easy way to unsubscribe if a contact wants to revoke their consent
- You need to document how and when each contact in your database expressed consent.
What to do with existing contacts
Any contacts that you have an existing business relationship with, i.e. they have purchased products or services from your or they have made a clear inquiry about doing business with you, are subject to a three-year transition period. Before July 1, 2017, you will need to confirm their opt-in status. Work towards transitioning these contacts to express consent over the course of the next three years by offering them high-value content in exchange for their express opt-in status.
May 23, 2017 UPDATE: You still have a little over a month left to obtain express consent and renewed implied consent from your customers— start reaching out now!
For contacts that are not subject to the transition period, we recommend that you segment your email list to identify anyone who may be in Canada and take the necessary steps to have these contacts confirm their opt-in status before July 1, 2014.
These are a few of the identifiers that you can use to isolate Canadian contacts:
- Email address with a .ca domain
- Contacts with a Canadian postal code
- Contacts with a Canadian area code
- Shipping or billing addresses in Canada
- Any contact that works for a company headquartered in Canada
- IP address located in Canada
If any contact that you do not have a business relationship with meets even one of these criteria, we suggest that you attempt to confirm their opt-in status. We will provide specific strategies to convert these contacts to express consent in part two of this blog post – One Week CASL Countdown – Is Your Marketing Strategy About to Violate Federal Law?
CASL Compliant CEM Requirements
After July 1, 2014, all commercial electronics messages that you send in, to or from Canada must contain the following information to be CASL compliant:
- The email must clearly state the person, business or organization that is sending the message
- There must be a clear and straightforward way for recipients to unsubscribe from your messages at any time
- Your emails must contain a valid mailing address and either a telephone number, email address, or web address
In many ways, these new requirements reflect email marketing best practices that industry thought leaders have advocated for years.
If you are actively engaging in whitehat email marketing, CASL will not have a huge impact on your strategy. For those organizations who are still purchasing email lists and soliciting products/services to contacts that have not opted in your strategy is going to come to an abrupt end on July 1, 2014.
Inbound Marketing in the Post CASL Era
The restrictions outlined in CASL have redefined how marketers can legally generate new business. More so than ever marketers need to find ways to attract website visitors, convert leads and close customers – pull rather than push.
To learn how inbound marketing can be put to work for your organization, download our Executive’s Guide to Inbound Marketing.
The information presented in this blog post was created in collaboration with Christene Hirschfeld, Queens Council, Intellectual Property Lawyer, BOYNECLARKE. Please contact Christene if you wish to seek legal advice about how CASL will impact your sales and marketing activities.
Christene is a partner at BOYNECLARKE and lives in Queensland, Nova Scotia. Her practice focuses on business and intellectual property law. She is often invited to speak on intellectual property as well as matters relating to business related issues including financing, privacy, and other topics.
Christene’s name has been included in the publication The Best Lawyers in Canada since its first edition in 2006, and she has been given Distinguished Attorney Rating from Martindale-Hubbell. In 2013, Christene was named the Best Lawyers’ 2014 Halifax Information Technology Law “Lawyer of the Year” and also was a recipient of a 2013 Lexpert Zenith Award “Celebrating Women Leaders in the Legal Profession.” She is a founding member of Women in Film and Television – Atlantic, a member of the Canadian Intellectual Property Office’s Speakers Bureau, an Associate of the Law & Technology Institute, an Affiliate of the Intellectual Property Institute of Canada, the Past Chair of the Canadian Bar Association’s National Intellectual Property subsection, Past Chair of the Nova Scotia Chapter of Canadian Women in Communication, a past director of the Information Technology Industry Alliance of Nova Scotia and a former lecturer at Dalhousie University Law School. Christene has been recognized by her peers and is regularly included in Best Lawyers in Canada and Canadian Legal Lexpert Directory.