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Nuts & Bolts - Eye on Privacy : 10 Million Reasons to Care About CASL

August 2014 By Gwenn Freeman
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I know what you’re saying to yourself. “I’m not a Canadian business.” “My email marketing is targeted to the U.S.” “I don’t send marketing emails, but use newsletters to get around legislation like this.” “I’m a B-to-B marketer.” “I’m a nonprofit.”

That all sounds reasonable until you actually look at Canada’s Anti-Spam Legislation (CASL). CASL went into effect on July 1, 2014. It regulates commercial electronic messages (CEMs) that are sent from computer systems located in Canada or accessed (received) from computer systems located in Canada. Unlike the CAN-SPAM Act in the U.S. that requires opt-out, CASL is an opt-in law with limited “implied consent” exceptions. There are very specific requirements for content that must be included in your message. The cost of non-compliance is high, with fines of up to $1 million for an individual and up to $10 million for a business. CASL is now the most onerous anti-spam law in the world. For this reason alone, you should assess your digital messaging for compliance.
Some things to consider:

• CASL regulates CEMs, but what does this really mean? It’s definitely more than email, but how much more is unclear. The law defines an “electronic message” as a message sent by any means of telecommunication, including a text, sound, voice or image message. This is being interpreted to include emails, texts, instant messages, telemarketing, newsletters and messaging within social media. It is any electronic communication that is “pushed” rather than “pulled.”

• Then there is the question of “commercial” electronic messages. The term “commercial” is less vague in that we know it covers “for profit” and “not for profit” messaging. The commercial message does not have to be the primary intent of the communication, but can be as benign as a link to your website. An email sent to solicit someone to opt-in to future messaging is a commercial message, and is no longer allowed.

• The “implied consent” exception is very narrowly defined. Just because you meet the “implied consent” exception under CAN-SPAM does not mean you will meet it for CASL.

• There is no exception for B-to-B other than internal communications within a business or between businesses who have an existing relationship.
 

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