On July 1, 2014 the Canadian Anti-Spam Legislation (CASL) goes into effect. This not only affects how Canadian businesses send emails, but also any business that sends marketing emails to Canadian recipients.
What is it?
Essentially it is intended to do what it says on the tin – CASL is the Canadian Government’s new law designed to not only combat unsolicited email, but also includes Malware proliferation, hacking and identity theft. In its own words it is:
“an Act to promote the efficiency and adaptability of the Canadian Economy.”
How is it enforced?
CASL is going to be enforced by three different agencies – the Canadian Radio-television and Telecommunications Commission (CRTC); the Competition Bureau; and the Office of the Privacy Commissioner of Canada.
Penalties for infringing the law can range from up to C$1 million for individuals, and C$10 million for companies. The CRTC does have the ability and authority to operate trans-border, to bring proceedings against offshore organisations – in short; they will most probably come after you. These two provisions combined make CASL even more stringent than America’s CAN-SPAM or European PECR laws.
Are you affected by this law?
- Do you send marketing emails from Canada?
- Do you send marketing emails to anyone in Canada, regardless of whether your company is based outside of the country?
- Do your customers access their emails from Canada?
If the answer to any of the above questions is ‘Yes’, then CASL is directly applicable to you. If you are unsure of any of these answers, then the onus is directly upon your company to find out.
Key Points of CASL
We highly recommend your legal team review CASL’s regulatory documents.
In the first instance, it’s important to note the Canadian Government’s definition of a marketing email:
“[A Commercial Electronic Message] is an electronic message sent by any means of telecommunication that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.”
81000-2-175 (SOR/DORS) Canadian Government
The second main feature is the definition of consent. CASL classes consent into two categories express consent and implied consent.
Express consent means that a recipient has explicitly asked to receive your emails, either through a clearly labelled web-form, a sign-up link in a service email (e.g. purchase receipt) or has clearly opted in at some point during the purchase phase.
Many businesses currently operate on ‘implied consent’ with regards to who they believe has opted into their marketing lists. Implied consent implies that a relationship exists between customer and organisation, but the recipient has not explicitly asked to receive emails – for example, after a purchase.
Under CASL, ‘implied consent’ expires after 24 months. After this point, your marketing emails are considered unsolicited and liable. Express consent has no expiry point (until your recipient unsubscribes, that is).
The Canadian Government has given all businesses until July 1 2017 to collect and demonstrate express consent from their current marketing lists.
More information on CASL is available directly from the Government of Canada’s website at fightspam.gc.ca.