Canadian Anti-Spam Law
Canada finally has a date for enforcement of the Canadian Anti-Spam Law or CASL for those who want to keep it short. The law was originally passed in 2010, but enforcement is set for July 1, 2014.
Much like the CAN-SPAM regulations for the US, CASL has been put in place to weed out the pesky SPAM that hits our inboxes. CASL has been deemed one of the strictest and most aggressive anti-spam law in the world with regards to opt-ins. A huge change will be with the definition of implied consent. No longer will unrestricted implied consent be (emailing based on existing business relationship) be possible. The fines are steep and not worth non-compliance. Trust me when I say steep, I am talking up to 10 million dollars PER VIOLATION.
What kind of messages are regulated?
Commercial Electronic Messages:
A CEM is an electronic message that has, as one of its purposes, the encouragement of participation in a commercial activity. Broad rule; If the message seems commercial it probably is.
Includes any message sent by telecommunication:
Email: Any form of communication that is marketed through email service providers
SMS: Any form of communication that is marketed via text on mobile devices.
Instant Messages: Messaging through any provider of this service ( Gmail, Skype etc..)
Social Media Messaging: Direct messaging on all social media platforms as well as posting to walls, feed etc.
What is prohibited?
- The sending of commercial contact without the consent of the recipient. Includes all forms of the above types of CEM’s.
- Any alteration of the transmission of any data in an electronic message being delivered without express consent.
- Installation of computer programs without express consent.
- Using false or misleading representation online with the promotion of products and services.
- Collecting data through accessing a computer that violates federal law.
- Address harvesting by collecting email addresses by the use of computer programs ie: web crawlers and dictionary attacks. We speak to a lot of people that have “bought” or “rented” lists and we have never seen a good result. At best you pay too much for addresses that don’t convert. At worst you could get hit with a lawsuit and have your domain blacklisted.
What do I need to do?
CASL requires users to have explicit consent from all subscribers. Ensure you have express consent from all your subscribers and proper implied consent with your subscription emails. If you have used a webform from your ESP you PROBABLY have record of their IP address, when and where they signed up. If they have manually subscribed via a form from an event like a tradeshow, as long as the checkboxes are clear with their signature, it follows CASL laws. As with all records, please keep and store them properly.
Consent- Implied consent and Existing Consent:
- Consent is implied where the sender and recipient have an existing business relationship IE: transactional emails. You are able to market to them, but in the case of future relationships, if they do not become a customer, it expires 6 months after the initial contact and 2 years after initial transaction
- Pre-checked boxes are NOT implied consent. Where prior to CASL when soliciting potential subscribers with email subscriptions, you could pre-fill the boxes for a subscriber to simply hit submit, that is something now strictly prohibited. Although it is a way to increase list size we do not recommend it, though it is legal in the US CAN-SPAM. It is all about quality over quantity to form a solid base of customers that WANT your emails.
Businesses have three years to verify and confirm consent captured under other circumstances. The intent of this transitional period is to obtain consent.
- Please remove any pre-checked consent boxes on your forms. This is a direct violation of CASL. Consent can be proven, through your opt-in records that your current CRM will hold or any manually entered forms that live on your site. If you cannot locate the records, please understand that cleaning your lists is essential and removing any questionable contacts is highly suggested.
What is required in all email communication?
- Similar to current regulations already in effect, once you have gained consent, you need to include the proper information in each message.
The business name that obtained the consent. If there is no business name it can be the name of the person who obtained consent
- If the message is sent on behalf of another person then the name of the business on whose behalf the message is sent can be used. If different from their name the name of the person on whose behalf the message is sent can be used.
- If the message is sent on behalf of another person you will need to include a statement indicating which person is sending the message and which person on whose behalf the message is sent.
- The mailing address and either a telephone number providing access to an agent or a voice messaging system, or an email address or web address of the person sending the message. If different this same information applies to the person on whose behalf the message is sent.
There are a few exemptions to this new law:
- Internal communications between organizers and existing relationships sent on platforms where required ID and unsub info is conspicuous and readily available.
- Responses due to complaints inquiries and requests
- Legal Obligation
- On behalf of a political party
How can I tell that I am sending to a Canadian recipient?
Email addresses don’t always tell you what nationality they are. US Marketers should be aware that it is safe to say with this regulation, you want to be consistent across the board with all country requirements. CASL is directed at any email sent to any IP in Canada. Larger companies like Amazon, Netflix should be hyper aware of the CASL regulations as they are global companies, but small marketers should be just as aware. Canada is our friendly hat, and they definitely are big with US businesses. Also please note that the CASL requirements will be in addition to those prescribed in the U.S.CAN-SPAM Act. As a result, it will be important for such entities to also adapt to, and comply with, these laws as well. So to wrap it up, CASL should just be the hat to our U.S.CAN-SPAM Act. In conjunction with each other you will be able to cover all Canadian and US subscribers.
What we suggest for our users:
What happens if your lists do not comply? GET ON IT. You don’t have very much time left at this point. The law is going into effect on 07/01/2014. If you have pre-filled boxes on your website, redesign that beast and make sure they are all unchecked. ExactTarget has said that their strict anti-spam policy follows everything that is needed with this new law. If you feel you have subscribers that you believe have not given proper consent, you have until then to re-permission those addresses. If not, just remember this large number… 10 MILLION DOLLARS PER INFRACTION.
With our ExactTarget subscribers, ET has done a great job and made sure that their opt-in controls are up to date and ready for the new CASL laws, but that doesn’t mean every subscriber you have is properly signed up.
What we at eROI will do for you:
As with all new regulations there will be more information filtering down to digital marketers. We will continue to monitor and keep you up to date with any changes or additional information that we find. But it is safe to say start cleaning your old lists and make sure all your data is compliant and consistent with all countries’ anti-spam laws. If you are not able to or are unsure how you obtained certain subscribers, clean that list. It is not worth the penalties associated with CASL as well as US CAN-SPAM laws. I would be glad to assist in answering any questions you have around what you should do. Please do not hesitate to contact me. Andy Mckinley
We also strongly encourage setting up Reply Mail Management to your ExactTarget accounts. Reply mail management is a feature that automatically manages replies (including those from auto-responders) and leave or unsubscribe requests received in response to your emails.This will assist you in ensuring all unsubscribes are properly filtered and successfully unsubscribed. Implementing this automated process will save you time and money. Here is a guide on how to set this up on your account.
Or please contact me to set this up for you.