Email Marketing Law In Canada (CASL)

This is a shortened version especially for LinkedIn. Read the full article on the 47 Insights blog.

Canada’s Anti Spam Legislation (CASL) came into effect on the 1 July 2014 and is enforced by Canadian Radio-television and Telecommunications Commission (CRTC). In addition to email marketing it also covers commercial text (SMS) messages and commercial instant messaging too.

How is email marketing defined within CASL?

Email marketing is defined as commercial electronic messages (CEMs). These include:

• Offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land
• Offers to provide a business, investment or gaming opportunity
• Promoting a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so

Any business sending commercial emails from within Canada or to recipients in Canada must comply with CASL or risk a fine of up to $10 million. So if you are a company based outside Canada emailing Canadian prospects and customers you must comply too!

The three foundations of CASL

1. Consent (explicit or implied)

You must have the recipient’s consent, either explicitly or implied. Explicit consent can be given either in writing or verbally. When it comes to website forms, a pre-checked box cannot be used, as visitors must explicitly ‘opt-in’ rather than ‘opt-out’.

Implied consent occurs when you already have an existing business relationship or when someone gives you their email address without any restrictions.

Consent is also implied for members of an association, club or voluntary organization. Implied consent is generally interpreted as lasting 2 years from when they first gave you their email address. One important exception to this is subscriptions or memberships. The implied period starts on the day the relationship ends. So if you are a SaaS company offering free trials you can continue to email people who trialled your software but didn’t buy for a further 2 years.

If you were sending commercial emails to a recipient prior to 1 July 2014 you actually have their implied consent until 1 July 2017. But, as with all other situations, their consent ends just as soon as they ask you to stop emailing them.

2. Sender identification

Every email message must clearly identify the organization on whose behalf it is being sent. You must include a postal address and in addition either a phone number, email or website address. P.O. Box, rural route address, or general delivery address are all acceptable. Also, the details you give must be valid for up to 60 days after the message is sent.

3. Unsubscribe mechanism

You must provide an unsubscribe mechanism that is ‘readily performed’. Put simply what this means is that it must be quick and easy for the recipient to do. Unsubscribing must be provided at no cost and take 10 days or less to be carried out. All the big email service providers (MailChimp, Constant Contact, Campaign Monitor etc) and most CRMs have slick unsubscribe mechanisms so there’s no reason to reinvent the wheel.

Don’t get caught out by CASL!

I can only find details of four companies that have agreed to make 'voluntary' payments in connection with non-compliance (apparently these are not fines). Click the links below to read more about these violations:

? Blackstone Learning Corp: $50,000 in October 2016

? Kellog Canada: $60,000 in September 2016

? Rogers Media Inc: $200,000 in November 2015

? Porter Airlines Inc: $150,000 in June 2015

It’s worth noting that the directors and officers of a company can also be held liable. As can agencies sending campaigns on behalf of clients.

Spammers can be sued from July 2017

Business owners and marketers should review their CASL compliance now as a private right of action comes into force on 1 July 2017, making it possible for recipients to sue a sender for violating CASL. This could result in some very expensive class actions! An excellent CASL article from international law firm Dentons contains more details of the private right of action and compensation.

CASL checklist

Here's how to make sure you're 'King of the CASL':

1. Review your email opt-in forms on your website and ensure boxes are not pre-checked
2. Change any email mailing lists to double opt-in
3. Review the consent you have with existing contacts
4. Ensure future consent is explicit whenever possible
5. Ensure your commercial email messages includes the correct sender identification
6. Ensure your unsubscribe mechanism is compliant (easy, no cost, less than 10 days)
7. Keep your email campaigns truthful

This is a shortened version especially for LinkedIn. Read the full article on the 47 Insights blog.