Plain & Simple Must Know Facts About CASL

Must-Read Disclaimer

Be advised that this is no way legal advice. This is simply our interpretation of the new Canadian Anti-Spam Law and it’s 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 Council, Intellectual Privacy Lawer, BOYNECLARKE. Please contact Christene if you wish to seek legal advice about how CASL will impact your sales and marketing activities.

What is CASL?

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.

The fines for violating the new laws are staggering – Individuals can be fined up to $1,000,000 and businesses could be set back $10,000,000.

To avoid massive financial risk you need to act quickly.

Here’s what 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 Federal Canadian laws.

In order 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

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 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.

The language around implied consent seems a little vague, and the time limitations are restricting, which is why we suggest working towards gaining express consent.

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.

In order for a contact to meet the express consent requirements there are a number of criteria that must be met. These changes largely 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 a 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.

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 in order 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.

If you would like 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.

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