On the 1st of July 2014, the Canadian Anti-Spam Legislation (CASL) will come into effect, and it’s provisions will reach far beyond the borders of our maple-loving neighbours and be applied to anyone who’s emails are opened in Canada.
It’s important to note that CASL is not just limited to Canadian email addresses (email@address.ca), but encompasses any email which is opened in Canada. That could be via Gmail, Hotmail, Yahoo or any other non-geographically identifiable address.
As it’s impossible to know exactly where your emails are going to be opened at any given moment, it will no doubt be a requirement that businesses worldwide comply with CASL to avoid breeches.
We’ve put together this quick overview of CASL to give you a general idea of how it may effect you, but we advise that you contact your own legal advisers to ensure that you are fully compliant come the 1st of July 2014. The following information should not be considered legal advice, more information is available on the CASL website.
Consent
The biggest focus of CASL is consent. Anyone who sends a commercial electronic message that is received in Canada must have prior consent from the recipient and that consent must not be implied. You must have written or verbal evidence of consent from each of your recipients. “Sure, we have that!” you may think, but here’s where things are a bit different. Implied consent under CASL does not include pre-checked subscription boxes in forms or the use of ‘subscription language’ in your terms and conditions. So having your email program subscription box automatically ticked at the end of a form, or having ‘you agree to receive commercial messages’ in your T&C’s are a big no-no
Implied Consent
Implied consent can still be used, but only under three strict circumstances:
- You already have an existing business relationship with a recipient
- You have received an email address from a recipient with no express request not to receive commercial messages
- The recipient it has published their own address with no express request not to receive commercial messages
However, implied consent only lasts for six months if recipients to do not become clients or opt-in to your emails during that time. For existing clients, this is extended to two years if they do not purchase, subscribe or renew with you.
What to Do
The most important aspect of CASL is having evidence of your opted-in email list. You must have written or verbal evidence from your each of your recipients to be in full compliance. It is therefore of great importance that you check your email lists for this evidence, and review any cross-marketing or 3rd party affiliations you may have. It’s also a good idea to check with your own legal counsel to ensure you’re fully covered.
If you’re running a successful email marketing program, there’s a good chance you’re already doing a lot to comply with CASL, as good email marketing is always permission based.
CASL should be of great benefit to legitimate senders who have been using, and will continue to use, best emailing practices. Anyone who breeches CASL (i.e. spammers) will be in line to receive some pretty hefty fines.
We’ll be keeping a close eye on future developments of CASL to inform you of any changes which may affect you.
