Canadian Anti-Spam Legislation (CASL): What Advertisers Need to Know

The Canadian Anti Spam Legislation (CASL) goes into effect July 1, 2014. As someone who works for an agency with offices in both the US & Canada, I decided to compile a little blog post to shed some light on the immense differences between Canadian and US marketing landscapes.
After sitting through several webinars with other marketers, it is safe to conclude that CASL , at this point, is a bit of a head scratcher. Thankfully, we were able to cut through some of the clutter on February 26, 2014, with an informative webinar hosted by Canada Post.
Please note that this is not legal advice. This is my understanding of the legislation and a very top level overview of what marketers should know about CASL. There are some good sources of CASL reading material provided at the end.

What is a Commercial Electronic Message (CEM)?

A commercial electronic message or CEM is any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit. Canadian Government Anti-Spam site
The new law will prohibit sending of commercial electronic messages without the recipient’s consent (permission), including messages to email addresses and social networking accounts, and text messages sent to a cell phone. Canadian Government Anti-Spam site

Frequently Asked Questions About CASL

1. Are tweets considered a CEM?

This was a great question asked at the webinar, and the answer is ‘apparently not’. This is an interesting one because tweets are considered “broadcasts”. As someone in digital media, this was music to my ears.

2. Will a Facebook Page Post ad (the paid ads that appear in the actual newsfeed) be considered a CEM?

Does that mean you will have to include contact info & opt out in the post?

This is a grey area. It depends on whether you (or Facebook) chooses to use the exception in ss 3(d) of the Regulations which states (in short) that the messages are exempt from the consent, form and content rules as long as certain website requirements are met.
The regulations are SOR/2013-221 (8100-2-175). If you click on the link to the Act there is a tab that will take you to the regulations.

3. When can you send a CEM?

An advertiser is prohibited to send a CEM unless the person consents. Within any CEM, the following must also be included:

• Identification information of the sender or sponsor of the message (although 3rd party  advertisers or marketers, if they are sending the message on a behalf of a client, do not need to identify themselves)
• Contact information, in the form of a mailing address, of the CEM sender(s)
• Unsubscribe mechanism, which must be clear, prominent and should be quick, simple and easy for a consumer to use

4. How do you know if someone has given consent?

Judging by the number of questions at the end of the webinar, this is certainly a hot topic. For example, if someone has given you their business card in person, does this imply consent? How about if a customer downloaded a white paper on your website, and had to provide their e-mail address; does this mean they actually want to receive a CEM in the future?

There are four main parts of “consent” that we discussed:

• Consent can be implied based on an existing business relationship.
• If someone has opted in to receive e-mails, this is considered consent
• If an oral agreement is made, that is consent. However, the business must be able to verify this with proof.
• Each activity must get separate consent

However it is noted that acquiring email addresses through contests or promotions, purchased lists of email addresses or other contact info from a 3rd party will not be considered consent under the new CASL. The legislation also excludes “pre-toggled” or “pre-checked” boxes as a mechanism for consent. This is a game changing move for many email marketers.

5. What should you do after you receive consent?

• Make sure you know how and where you received consent
• Make sure you can validate the relationship you have with these individuals
• Refresh/Purge consent before the legislation comes into force
• Just because someone has consented once, doesn’t mean consent is valid after a period of time

6. When can an individual start taking legal action against those who have violated CASL?

If you check out the Enforcement section of the CASL website, it states:

“Starting July 1, 2017, there will also be a private right of action that will permit individuals and organizations to bring a lawsuit in court against someone who they allege has violated the law.”

It sounds like 2017 will be a fun year for lawyers.

New timelines to consider with consent and contact lists

• An advertiser now has 10 days to process an opt out. By the way, this is 10 days from the moment the first person on the team receives the opt out request. This means that now more than ever, there has to be a very trusting relationship between advertisers and any vendors; as advertisers will likely be held responsible for vendors following this legislation and keeping records of such.
• Your e-mail database should be constantly and consistently cleaned up.
• The advertiser’s contact information in any CEM must remain valid for 60 days.

Penalties

Better get familiar with CASL, because the maximum penalty for a not being in compliance for an individual person is a million dollars and for businesses and other organizations the fine can be up to ten million dollars.

For more information on CASL:

Canadian Government Anti-Spam site
Office of the Privacy Commissioner of Canada
Anti-Spam Quiz
Canadian Consumer Handbook’s section on Spam
The Canadian Bar Association
Retail Council of Canada: Impact on Retailers