Disclaimer: As we do every time we post about CASL, we encourage you to seek legal advice to ensure CASL compliance. This post is informational only and not intended to serve as legal advice or guidance.
This summer, Canada’s strict anti-spam law will get stricter—and the risk of non-compliance will get riskier. The Canadian Anti Spam Law (CASL) was set up that way, to give marketers time—three years, to be exact—to be ready for compliance with the harder-hitting version of the law. So here we are, into a countdown of the final four months before that happens.
Are you ready?
A CASL refresher
In effect since July 2014, CASL is far more stringent than the U.S. CAN SPAM law, and it applies across borders. Yours does not have to be a Canadian company to have CASL’s regulations apply to your email marketing. Whether you’re in Canada or send to Canadian residents from somewhere else in the world, you have to comply with CASL. Period
CASL applies to more than just email. It applies to any Commercial Electronic Message (CEM) sent either from or to Canada. This can include text messages, instant messages and some social media communications. For our purposes here, however, we are only talking about the email marketing part of it.
Understanding the two kinds of CASL consent
Compliance for email marketers can be a little tricky to understand, because there are two kinds of consent that apply with the Canadian law—and consent is required. One type of consent is implied, meaning the consumer or organization has bought from you or had some communication with you implying they are willing to get emails from you. The other type of consent is express, and it is the ultimate goal of CASL as I understand it, to ensure that those on the receiving end of any email marketing messages have expressly stated they want to receive those messages.
I am grossly oversimplifying the implied consent here, which is actually quite complicated, so please see the DMA’s excellent resource on CASL for a much better explanation. But we have to address implied consent in order to talk about one of the changes coming July 1.
First change: You must have express consent
As of July 1, 2017, you have to have express consent with one exception. By the time this change goes into effect, email marketers will have had three years to get express consent. This means that if the consumer’s implied consent is dated before July 1, 2014, then you have until July 1, 2017 to reconfirm permission—getting express consent.
If you got implied consent after July 1, 2014, implied consent is fine for 24 months after a purchase or six months after an inquiry. Anything outside of that timeframe requires express consent. And obviously, you’re still limited in how long you can email someone based on implied consent alone.
One caveat to all of this: You have to have some kind of date stamp or record of the implied consent. If you don’t have proof that the owner of the email address has given implied consent on a certain date, then you don’t have the consent at all—even if they did make an inquiry or a purchase from you. No dated proof, no implied consent.
Second change: Private right of action now possible
Keep that in mind as we delve into the other change that takes effect in four months. Starting on July 1, individuals and organizations will be able to bring a “private right of action” against persons or companies they judge to have violated CASL regulations—in other words, spammed them. The law allows these individuals or organizations to pursue actual and statutory damages. Up until July 1, only the Canadian Radio-Television and Telecommunications Commission (CRTC), the Competition Bureau, and the Office of the Privacy Commissioner of Canada, could investigate and litigate against those not complying with CASL.
If that doesn’t give you pause, know that the first organization to be found in violation of CASL received a fine of $1.1 million. Are you nervous now?
What’s an email marketer to do?
Honestly, when you read through the nuts and bolts of CASL compliance, it’s simply a matter of common sense and email marketing best practices. Complying with the Canadian law should not be a challenge for any email marketer who is diligent in their list building and maintenance, and who actively strives to engage their audience. It’s also worth complying with CASL because it will keep you compliant the world over—something that will be even more top of mind for marketers in 2018 as the EU’s new data protection law, known as the GDPR or General Data Protection Regulation, goes into effect.
What’s an email marketer to do? Brush up on best practices if you need to. Put a regular list hygiene plan into place. Review your list acquisition practices. Strive to engage the people on the receiving end. In short, what you should do is what you should do even without CASL in place to force you.
As for the actual compliance, however, read up on it. I mentioned this above but it’s worth mentioning a second time: The DMA has an excellent guide to CASL compliance. I strongly suggest you review it to ensure your compliance now, and after July.
About the Author: Sharon
