In July, the Canadian government will put an end to unrestricted implied consent from subscribers, requiring all marketers sending commercial electronic messages (CEM) both to or from Canada—including those based in the United States—to receive clear consent from email recipients.
Canada's Anti-Spam Legislation (CASL) is one of the most aggressive laws in the world mandating consumer opt-in for marketing emails. Once implemented, violators can receive fines of up to $10 million per violation. Organizations that mislead recipients with false sender information in a marketing message will face criminal charges.
CASL has far-reaching implications for marketers targeting Canadian consumers. To ensure compliance and better understand how it will impact current and future email marketing campaigns, here's what you need to know about CASL:
- CASL Covers All Electronic Communications: The law's predecessor, CAN-SPAM, enacted in 2003, only imposed regulations on email messages. CASL expands the types of electronic messages covered in the law to include email, SMS, social media messages and any other electronic message format that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.
- Gives Consumers Complete Control Over Messages Received: CASL focuses on CEM consent and dictates how organizations can collect subscriber opt-in information. The law was designed with consumers in mind, giving them complete control over the messages they receive and eliminating any electronic communications users have not explicitly opted to receive.
Prior to the legislation, marketers could send email messages with either expressed or implied consent, as long as the email included a valid unsubscribe option to remove recipients from future mailings. Marketers could also collect email subscribers by prechecking an opt-in box when collecting their contact information, or by including email consent in their terms and conditions of use or sale.
Although CEM correspondence must still include an unsubscribe option, expressed consent is now required with CASL for most types of commercial messages starting in July. In addition, marketers are prohibited from inserting email consent clauses in their terms and conditions of use or sale, and they must receive clear consent from consumers to send electronic messages by having them check a box or manually input their email address in a field.
- Implied Consent Still Applies, But Only in Limited Circumstances: Implied consent is only applicable in certain scenarios, such as: if the marketer is sending an email as a result of an existing business or non-business relationship; if consumers willingly publish personal information, including email addresses or phone numbers, online without specifying they have opted out of CEM correspondence; if consumers share their contact information with the sender and don't explicitly opt-out of receiving CEMs.
The types of messages that are safe to send with implied consent include a quote or estimate for the cost of a product, good or service; or other information that was specifically requested by the consumer. If correspondence is part of an existing commercial transaction; provides warranty, recall or safety information about a product the consumer has used or purchased; or offers factual information about an ongoing membership, subscription, account or loan, then the message is safe to send with implied consent. Messages regarding employment information or benefits plans are also covered under implied consent.
After six months, implied consent is no longer valid if the consumer has not become a client. If consumers are existing clients but haven't purchased, subscribed or renewed their accounts for two years, implied consent will also become invalid.
If you are sending electronic messages in any form (e.g. email, text, SMS, sound, voice or image) to or from Canada and are engaged in commercial activities, including nonprofit organizations, you are required to adhere to the new CASL regulations or face hefty fines.
Now that you have a clear understanding of the new email consent requirements under CASL, you should have a better idea of which, if any, changes you need to make before July 2014 to comply with the new regulations. It's also beneficial to consult with your Email Service Provider (ESP) and legal counsel to ensure your email marketing program meets the key compliance requirements. This will prevent costly fines and interruptions in your marketing outreach programs.