On July 1st 2014, the Internet marketing landscape is changing. From this date it will be illegal to send an unsolicited commercial electronic message such as an email, tweet, or Facebook message to someone in Canada. Here are a few facts Small Business owners need to know along with some tips to help you get ready.
A Few Facts
- The new CASL rules are part of the C-28 bill which received royal assent in 2010. After some lobbying by business interest groups lead to some adjustments, Ottawa announced in December 2013 that the new law would take effect on 1 July 2014, giving businesses 6 months to prepare.
- The legislation allows for penalties of up to 1 million for individuals and 10 million for companies. “Private Right of Action” starts July 1, 2017.
- It will be enforced by the CRTC, the Office of the Privacy Commissioner, and the Competition Bureau.
Who and What Does it Apply To
- CASL applies to:
- Any Commercial Electronic Message (CEM). Thus not just email but texts, tweets, social media messages or posts, etc.
- Any CEM sent from a computer in Canada.
- Any CEM accessed by a computer in Canada. Thus it effects messages sent to or from other countries.
What is Exempt
- There are a few exemptions in CASL which are mostly logical. Here are a few of the key ones:
- Responses to inquiries (thus most email replies)
- Internal communications within organisations when the messages concern the activities of the organization
- Business to business messages where there is an existing relationship and the message concerns the activities of the organization
- Messages sent to family or those with whom you have a personal relationship
- Messages sent and received on social media where there is a clear “unsubscribe” function and there is an implied or explicit consent by the recipient
- Fund raising messages from Canadian registered charities and political parties
How Does Consent Work
- You must have written or oral consent to send a commercial message to an individual or company.
- This consent can be implied by an existing business relationship with the party. However this consent ends 2 years after the contract and it is up to you to prove the contract exists and the timing of it.
- Consent can also be explicit. If an individual gives their express consent by signing up for your newsletter, sending you a message (electronic or otherwise) giving you permission to send commercial information then it is fine to do so until they revoke consent by unsubscribing or giving notice to you.
- There are requirements for valid express consent such as:
- The name of the person or company seeking consent must be clear
- There must be contact information in the form of a postal address, telephone number and email or website address
- The reason for requesting consent must be made clear
- The ability to revoke consent / unsubscribe must be made clear
- You don’t have to re-qualify existing express consents.
So where do I go from here? Five Tips to Get You Started
- Read up and understand the rules. This post is a very quick summary and there are many excellent resources out there to help you get ready. Here are a few:
- Elite Email’s excellent CASL Survival Guide
- The Globe and Mail’s article by Brenda Bouw “New anti-spam law ‘a big deal’ for small businesses“
- McMillan’s publication by Éloïse Gratton “B2B Business Relations and Consent Requirements under the New Canadian Anti-Spam Law“
- Deloitte’s article “Canada’s Anti-Spam Law: Key exemptions“
- The Government of Canada’s Anti-Spam Legislation web site fightspam.gc.ca
- Review your business practices for electronic communication and how you obtain consent.
- Email your implied consent contacts before 1 July 2014 and ask for express consent.
- If you send out bulk marking messages via email (newsletters etc) make sure you use a professional email marketing service such as Elite Email, MailChimp, Constant Contact, or iContact. These services will not make you complaint on their own. However they will give you tools such as sign-ups with double opt-ins, unsubscribe management, default contact details, and express consent tracking.
- When in doubt, talk to your lawyer about your practices moving forward. With the potential of huge business sinking penalties for simple actions, an ounce of legal advice is worth a pound of lawsuits.
This article only provides a summary of Canada’s Anti-Spam Legislation (CASL) and does not constituent legal advice. This is far reaching legislation and legal advice should be sought when making business decisions regarding it.
Photos Credits: By Shakko (Own work) [CC-BY-SA-3.0], via Wikimedia Commons By Mooreiche Holz [CC-BY-SA-3.0], via Wikimedia Commons