The Canadian Anti-Spam Law (CASL) is the Canadian Government’s new weapon in the fight against spam. Most of Canada’s new legislation came into force on July 1st, 2014. Organizations will be required to have either the prior consent of intended recipients of commercial electronic messages (CEMs), or ensure that the messages being sent, or the recipients of those messages, are exempt from the requirements to get consent. If you’re in Canada or send to Canadian residents, you’ll need to comply with CASL. Luckily, there’s a three-year transition period, until July 1, 2017, during which you can take steps to ensure your list stays in compliance under the law.
What’s covered under CASL?
CASL regulations apply to any CEM sent from or to Canadian computers and devices in Canada.
A CEM is any message that:
- Is in an electronic format, including emails, IMs (instant messages), text messages, and social media communication
- Is sent to an electronic address, including email addresses, instant message accounts, phone accounts, and social media accounts
- Contains a message encouraging recipients to take part in some type of commercial activity, including the promotion of products, services, people/persona, companies, or organizations
Implied vs. express consent
Implied consent is a looser representation. Express (or explicit) consent requires action from both sender and receiver. Implied consent includes:
- A recipient has purchased a product, service or made another business deal, contract, or membership with your organization
- You are a registered charity or political organization, and the recipient has made a donation or gift, has volunteered, or attended a meeting organized by you
- A professional message is sent to someone whose email address was given to you and who hasn’t published or told you that they don’t want unsolicited messages
If you already have a legitimate business relationship with a “lead” (meaning they have purchased something from you previously), you can obtain new, explicit permission to continue marketing to them during the 36 month transitional period. Explicit consent requires three things:
- Consent (also called opt-in)
- Specific identification information from the lead
- An unsubscribe mechanism
For all other Canadian leads, you must take steps to allow them to opt-in again. Consent may be provided either in writing (including via online means) or orally. In either case, the marketer must keep documents verifying consent. Penalties for violations can range from up to $1 million for individuals and $10 million for companies. Personal and family relationships are exempt and do not require consent.