The Canadian Radio-television and Telecommunications Commission (CRTC) has finalized the new Canadian Anti-Spam Legislation (CASL), effective July 1, 2014. As of this date, all commercial electronic messages (CEMs) sent within Canada and into Canada from foreign countries, including the United States, must meet certain requirements. CEMs include emails, automated software updates and text messages sent by mobile phone. Non-compliance under this new legislation will incur significant penalties, including a maximum of $1 million for individuals and $10 million for businesses.
A CEM, broadly speaking, encourages participation in a commercial activity, whether or not there is an expectation of profit. The Canadian government now requires that all senders of CEMs to Canada must have Expressed or Implied Consent to do so. Under Expressed Consent, the recipient has given permission, either in writing or orally, to a sender that they will accept CEMs. If Express Consent is obtained before July 1, 2014, that consent is valid until the recipient actively withdraws it. Requests for consent cannot be combined with messages encouraging commercial activity.
Implied Consent applies where there is an existing relationship, which includes CEM transmission, between the sender and recipient prior to July 1, 2014. Senders have a 36-month transition period after July 1 to obtain Express Consent, in which case consent is valid until the recipient withdraws permission.
Secondly, in addition to Express or Implied Consent, all CEMs must also include a clear and simple identification of the sender or the full name of anyone on whose behalf it is being sent. Finally, every CEM must include a way for the recipient to unsubscribe, thereby voiding Express or Implied Consent. While the methods of unsubscribing may vary, it must be easy to do and readily performed. One CRTC-approved method is a link in the CEM that directs the user to a web page where he or she can unsubscribe. On mobile phones, the recipient should be able to reply with the word "STOP" or "Unsubscribe."
Senders are not permitted to use pre-checked boxes to obtain Express Consent; rather, the request must be sent separately and include specific information, including a stated purpose for which the consent is being sought; the name of the person seeking consent; a valid mailing address, email address and phone number for the requestor; and a statement that the recipient can withdraw consent at any time. Direct messages sent through social media platforms such as Facebook, LinkedIn and Twitter are also subject to CEM requirements. The private right of action for recipients affected negatively by non-compliance will go into effect in 2017.
Before July 1, organizations are advised to do the following: Send requests for Express Consent, including to those recipients with whom they have an Implied Consent relationship; prepare fully operational unsubscribe mechanisms; develop policies and procedures to fully comply with the legislation; and train employees on compliance.
Among those industry companies taking such steps is Accolade Promotion Group (asi/102905). "We'll continue to connect with our customers via email, as long as they want to receive our messages," says marketing manager Jennifer Roney. "The legislation will primarily impact how we set up our online platforms, both our website and CRM, and how we run our national promotional campaigns. We'll make sure we're giving customers good reason to opt in, and we'll ensure any CEMs provide value."
To remain in compliance with this complex legislation, Accolade has wisely consulted its legal team in order to stay abreast of the changes. Before July 1, they will send out emails asking for express consent, and will set up new internal and e-commerce procedures to manage the opt-in list once the legislation goes into effect.
Jennifer Vaughn, marketing manager at commonsku (asi/821098), says CASL will require her team to include updated language in CEMs, and to make sure Canadian clients have opted to receive those messages. The company is currently reviewing email lists and sign-up flow. By asking recipients to opt in, "our lists will include only engaged contacts, resulting in better ROI in the long run," says Vaughn. "It will also help us ensure that customers understand what they're receiving from us and why we're communicating with them."
Danny Braunstein, vice president of sales & business development at Talbot Promo (asi/341500), says his company is taking CASL very seriously, especially in light of the significant monetary penalties. "From an operational standpoint it's been time-consuming getting up to speed on the new legislation and educating our team and sales partners," he adds. Because of the opt-in nature of the legislation, "we're going to have to take much more of a top-down approach to Permission-Based Marketing at a corporate level. Our sales partners have had the flexibility to send supplier specials and seasonal flyers directly to their contacts without an opt-out mechanism. The unknown at this stage is how it will affect us from a prospecting perspective. The new regulations make it very difficult to acquire new leads."
All Canadian businesses and foreign organizations with business based in Canada should become familiar with the law by visiting www.crtc.gc.ca and http://fightspam.gc.ca, and are advised to consult legal counsel if necessary.