If you’re a business that sends out promotional emails or text messages, chances are you’ve heard about Canada’s Anti-Spam Legislation (CASL) that came into effect back in 2014.
What you may have forgotten about are the provisions that are coming into effect July 1, 2017.
What Is CASL?
In plain English, CASL prohibits businesses from sending commercial electronic messages (CEMs) to individuals without their express or implied consent (we’ll get back to how this works below).
CEMs are most commonly emails and text messages. In order to be classified as legitimate communications and not spam, they have to have certain pieces of information and features. Failure to comply with the legislation can lead to some hefty fines (we’ll give you some examples below, too).
What Are the New Provisions?
CASL is making some changes to their requirements that they had originally introduced in 2014.
As of July 1, 2017, implied consent will only be valid if there has been a consumer/business relationship in the last two years. A consumer/business relationship can be started when the consumer makes a purchase, or volunteers with your company at an event and provides you with their contact information.
There was also a new provision, the private right of action, which would have allowed consumers to file lawsuits against companies or individuals who allegedly violate CASL. However, this provision has been put on the back burner.
Private Right of Action Suspended
On June 7, 2017, the Government of Canada voted to suspend the private right of action, which would have allowed consumers who were allegedly mislead or harassed with spam to file class action lawsuits against the offending company.
According to the Government, the provisions concerning lawsuits were suspended because there needs to be a more balanced law that protects consumers from spam, but does not open up companies to additional harassment and payments on top of potential hefty fines from the enforcement agencies.
The Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development, explained that, “Canadians deserve to be protected from spam and other electronic threats so that they can have confidence in digital technology. At the same time, businesses, charities and other non-profit groups should have reasonable ways to communicate electronically with Canadians. We have listened to the concerns of stakeholders and are committed to striking the right balance.”
Violators Will Be Fined
Companies who violate CASL are already subject to fines at the discretion of three groups that enforce the legislation: the Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau, and the Office of the Privacy Commissioner of Canada.
Their role is to evaluate whether or not a company has violated CASL. If they find that the company has done so, they are able to fine the company.
Several prominent Canadian companies have been found to be in violation of CASL, and it came with some big financial consequences. Rogers Media Inc. had to pay a $200,000 fine in 2015 after allegations that their CEMs were not complying with the rules. For example, the unsubscribe function in their emails that was not able to be ‘readily performed’.
Porter Airlines experienced a similar situation. They paid a fine of $150,000 for not following CASL legislation.
Protect Yourself and Your Business
You must have a lot of questions about CASL and whether your company is complying with all of its requirements. If you aren’t sure whether you’re following the rules, these steps can help you begin to organize your company’s CEMs and make sure you aren’t in violation.
Cover the Basics
You as a company are responsible for proving that you have the consent of your customer to send them messages, and are providing all the necessary components of a non-spam CEM. When it comes to sending out CEMs, there are three basic things each one needs to have under the legislation.
- Consent. If you don’t have the consent of a consumer, do not send them any CEMs. Remember, as of July 1, 2017, implied consent will only be valid if you have had a relationship with the consumer in the last two years. This means that the person may not have given verbal or written permission, but gave it through their actions, like when they made a purchase, or after they download a free version of software or informational packet from your website. There are some key differences between express and implied consent.
- Your company contact information, including mailing address.
- An unsubscribe function that works effectively. According to CASL, a consumer who has requested to unsubscribe from a CEM must be removed from the send out list within 10 business days. Test the function from all of your different CEMs to make sure you are not inadvertently violating the legislation.
Remember: CEMs aren’t just emails; they are any electronic message. This includes text messages. If your company sends out text messages as well as emails, make sure those messages are in compliance with CASL.
Come Up with a Plan
In order to keep effectively getting your message out there, you may have to tweak your process. Make detailed plans about each step of your marketing process, including:
- Verifying what information your CEMs require.
Getting and verifying consent, and establishing whether it is express or implied consent.
- Implied consent can be proven using transaction records, donation records, or if the recipient had an email address that was published online and your CEMs relate to their business/interests. Start keeping a record of how you received consent, when you received it, and when you stopped receiving it for each customer. This will help protect your company in the future.
- Ensuring that if someone chooses to unsubscribes from your CEMs that they stop receiving them within 10 business days.
Implement New Programs
Now is a good time to look into a formalized email marketing plan and a customer relationship management system if you do not already have one.
If you already have a formalized email marketing plan, check to make sure it complies with all of the CASL requirements and see if there are areas that need a new approach. Using newsletter tools and other similar programs, you will be able to keep track of what is getting sent, who it is being sent to, and whether or not it is CASL approved.
While the private right of action has been suspended, it is important to adhere to all of the other parts of CASL. Make sure that whatever you send out, the recipient said or implied that you could. While class actions are not currently a threat, your company could still be slapped with some heavy fines by the enforcement agencies should you violate any of the rules.
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