Does your business promote its products or services via email, social media, or other electronic means? If so, Canada’s anti-spam law affects you.
Don’t get us wrong — we know you’re not a spammer. Truth is, the law applies to many forms of Internet marketing, including things we don’t normally think of as ‘spam.’ It covers everything from electronic coupons to newsletters, and even certain social media activities.
If your business has a digital marketing strategy, you should know the rules and take steps to ensure compliance. We’ve put together a quick primer on Canada’s anti-spam legislation and outlined steps you can take to stay on the right side of the law.
What is CASL?
Canada’s anti-spam legislation (CASL) came into force on July 1st, 2014. It sets rules for when and how you can send commercial electronic messages to individuals and businesses.
Does CASL Apply to Me?
CASL applies to anyone who sends commercial electronic messages in Canada. A commercial electronic message (CEM) is an email, text, or other electronic message that encourages participation in commercial activity. Electronic ads, newsletters, coupons, and promotions are examples of CEMs. The law also applies to some social media activities.
What are the rules?
1. With few exceptions, you must obtain the recipient’s consent to send them a CEM.
2. All commercial electronic messages must identify the sender and contain up-to-date contact information.
3. You must give recipients a fast, simple way to unsubscribe from your messages.
Canada’s Anti-Spam Legislation
Canada’s anti-spam legislation (CASL) sets rules for how and when you can send commercial electronic messages like email ads, offers, and discounts. The law also tackles malware, phishing, and other practices, but we’ll focus on the sections that deal with commercial electronic messages.
When it comes to sending commercial messages, CASL creates three major rules:
- Consent: You must have a person’s permission to send them a commercial electronic message.
- Identification: All commercial electronic messages must identify the sender and contain up-to-date contact information.
- Unsubscribe mechanism: You must give recipients an easy way to unsubscribe from your messages.
The law has been in force since July 1st, 2014, but some parts only take effect this year. Though the private right of action (lawsuit) portion has been suspended, you can still face steep fines from the Canadian Radio-Television Telecommunications Commissions (CRTC) for breaking the law. If you don’t have a CASL plan yet, now is the time to make one!
Does CASL Apply to My Business?
CASL applies to all individuals and businesses who send commercial electronic messages in Canada. A commercial electronic message (CEM) is any message that encourages the recipient to participate in a commercial activity, such as promoting a product or service.
A CEM can include any commercial message sent to an “electronic address,” like:
- Emails (newsletters, promotions, deals, coupons, advertisements, etc.)
- Instant messages
- Text messages
- Some social media activity
A public social media post, like a Facebook wall post, would not fit the definition of a CEM. However, since social profiles are a form of “electronic address,” a commercial message sent to a specific user would have to meet CASL’s requirements. It is unclear how the law might impact friend requests, tags in posts or photos, or Tweets at individuals.
What CASL Does Not Cover
Certain types of commercial electronic messages do not fall under CASL. These include:
- B2B messages where you and the recipient have a previous relationship.
- Internal messages related to your business’s activities.
- Messages you are legally obligated to send, such as safety recalls.
- Messages sent within an existing relationship. Includes a family relationship, business relationship, or non-business relationship (donations, volunteer work, etc.)
- Responses to referrals, so long as you name the person who gave the referral, and that person has a previous relationship with you and the recipient.
You can send these messages without the recipient’s consent, and it does not need to meet the other requirements for CEMs.
Getting a Recipient’s Consent
It is against the law to send someone a commercial electronic message without their permission. The good news is, there are a few different ways to get consent.
The best way to protect your business from potential claims or fines is to get express consent. Express consent is when you ask the potential contact for permission to send a message, and they explicitly agree. It requires an active “opt-in” process, where the recipient takes some action to show their agreement. For example, you can provide an online form that lets customers sign up for your newsletter.
There are a few rules to follow when seeking express consent. To start, you must state to the recipient:
- Identifying information, including your business name, mailing address, and either a telephone number, email address, or website URL.
- Why you are asking for consent.
- Description of the messages you will send.
- That the person can withdraw consent and unsubscribe at any time.
The recipient must actively affirm they want to receive CEMs from you. You cannot get express consent using a default or pre-checked toggle box. Additionally, you cannot “bundle” a request with another action. For example, the user shouldn’t have to consent to CEMs in order to agree to your terms of sale.
Do not ask for consent via an electronic message! This counts as a CEM. Instead, provide another way for people to sign up.
When Consent is Implied
Sometimes, you can infer consent from the recipient’s actions in lieu of express consent. However, implied consent can be difficult to prove, and it often expires after a certain time. It’s always preferable to obtain a potential contact’s express consent before sending a message.
Regardless, you may use implied consent under the following circumstances:
- Relevant CEMs: You may send CEMs which are relevant to the recipient’s official business role, function, or other duties if they gave you their electronic address or published it in a public place (like a company website).
- Responding to inquiries: You may contact a person who contacted you with an inquiry, complaint, or application within the past six months.
- Existing relationship: You may contact those with whom you had an existing business relationship or non-business relationship within the past two years.
- Clubs/associations: You may contact a person if you were a member of their club or association within the past two years.
If a person states they do not wish to receive unsolicited CEMs, it negates implied consent.
Exceptions to the Consent Rule
In the following circumstances, you can send a CEM without the recipient’s express or implied consent. You do not need permission to send:
- Quote or estimate the recipient requested.
- Information related to a transaction the recipient previously agreed to enter.
- Legal information such as warranties, product recalls, or safety or security issues related to a product or service the recipient has used or purchased.
- Digital products or services, including updates and upgrades, the recipient is entitled to receive.
Note that even when a consent exception applies, your message must still meet the requirements outlined in the section below.
Required Information for CEMs
Every commercial electronic message you send out must clearly and prominently set out:
- Your name, or the name under which you carry on business.
- If you are sending a message for someone else, include their name and indicate who is sending the message on their behalf.
- Your mailing address and either your telephone number, email address, or website URL. This information must be valid for at least 60 days after it is sent.
The message must also contain a working unsubscribe mechanism, as explained below.
You must give the recipient of any CEM a quick and easy way to revoke consent and “unsubscribe” from your messages if they choose. The process must be convenient, accessible, and free of charge. For example, an email CEM may have a hyperlink or a clickable button at the bottom of the message which removes the recipient from the mailing list automatically.
If a recipient asks to unsubscribe, you must fulfill the request within 10 days.
Making a CASL Action Plan
If you weren’t aware of Canada’s Anti-Spam Law before, you may have to make some changes going forward. There are things you can do to make the adjustment easier on yourself and your customers.
Your CASL action plan should include the following steps:
- Determine if CASL applies to you. If your business has a digital marketing strategy, there’s a good chance it sends some form of commercial electronic message. Review your online presence and determine whether your activities fall under CASL’s scope.
- Get express consent from your existing contacts. Since July 1st, 2014, the law has required that you document express consent for each new Canadian contact. You must also be able to prove express consent for old contacts by July 1st of this year. If you haven’t been doing this, you should start now! Send a message to these contacts asking them to affirm their express consent. You can offer a clickable link or an address they may contact to confirm. Don’t send another CEM until they do.
- Document express and implied consent for all new contacts. Develop a plan to document where and how you got each new contact’s consent. If you intend to rely on implied consent, keep track of when it expires so you will know when you must stop sending CEMs.
- Ensure all messages contain the right information. All electronic commercial messages must contain your name, mailing address, and either your telephone number, email address, or website URL. You must give recipients a simple way to opt out of receiving CEMs. Create a template which includes all the necessary information.
It may seem like a lot of work, but once you put this plan into action, you’ll find that complying with CASL is actually good for business. Many of these measures were considered best practices for digital marketing before the law came into effect. Keeping record of when and how you obtained consent can help you understand where your leads are coming from and spot trends over time. It also creates a more open, transparent relationship with your contacts.
Looking for more information about Canada’s anti-spam legislation? Check out these links from the government of Canada:
- Canada’s Law on Spam and Other Electronic Threats (Official site)
- Anti-Spam Legislation Infographics (CRTC)
- Frequently Asked Questions about Canada’s Anti-Spam Legislation (CRTC)