What You Need to Know about the Canadian CASL Legislation
If you are sending email marketing messages to Canadian subscribers or if you are a Canadian company you need to be aware of the new CASL (Canadian Anti-Spam Legislation) law that goes into effect on July 1, 2014.
CASL not only affects how Canadian businesses send emails, but applies also to any business that sends marketing emails to Canadian recipients. So if you think you may have Canadian recipients in your database, pay attention!
Are You Affected by CASL?
The first thing you need to determine, before you dive into this law, is if it relates to your organization. If the answer to ANY of the below is ‘Yes’, then CASL is applicable to your organization:
- Is your organization based in Canada or do you have an office in Canada?
- Is your ESP (Email Provider) based in Canada?
- Does your email marketing database include recipients who receive emails in Canada or who have a Canadian billing address or mailing address (or have an email address ending with .ca)?
- Do you send marketing emails to anyone in Canada, regardless of whether your company is based outside of the country?
On the other hand, this law DOES NOT relate to you if you meet these three criteria:
- Your organization has no physical presence in Canada
- Your ESP or email provider is not based in Canada
- You have no Canadian subscribers that you send email marketing messages to
What is CASL?
By now, you should have determined if this applies to you and if you should read on or do something more. Essentially, CASL is intended to do what it says – CASL is the Canadian Government’s new law designed to not only combat unsolicited email, but also strives to prevent malware proliferation, hacking and identity theft.
In its own words it is “an Act to promote the efficiency and adaptability of the Canadian Economy.”
First, 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.”
The second main point is the definition of consent. CASL classifies consent into two categories: Express consent and implied consent.
✔ A recipient has explicitly asked to receive your emails, either through a compliant opt-in 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.
✔ This consent does not expire unless revoked by the recipient!
✔ A recipient has an existing relationship with your organization. The relationship can be business related or non-business related but one where the recipient has not explicitly asked to receive emails from your organization– for example, after a purchase or a donation to a non-profit organization.
✔ This consent expires after 24 months, at which time your marketing emails are considered unsolicited and liable.
✔ During the 24 months period you can (and should) seek express consent from the implied consent recipients.
Many organizations currently operate on ‘implied consent’ with regards to who they believe has opted into their marketing lists. Therefore, it is important to dive into the details and fully understand the meaning of express and implied consent.
What is an Express consent CASL compliant opt-in form?
- Subscriber must take an affirmative action to sign up:
- Entering an email address and clicking “Submit”
- Checking a box requesting emails and clicking “submit or “Continue”
- IMPORTANT: a pre-checked box is NOT an affirmative action
- The form clearly states that the subscriber will receive commercial marketing email messages from your organization
- A statement clearly saying that that the recipient can unsubscribe at any time
- Clearly state the name of the organization, including physical address (P.O. Box is OK), Web address (if you have one), and a functional email address
- Single opt-in is mandatory but double opt-in is highly recommended as it ensures that the person filling the form is the true subscriber. Once someone subscribes, it is a recommended practice to send a confirmation or welcome email to the subscriber.
- Our recommendation is to modify your current opt-in form to reflect the above CASL requirements whether CASL impacts you or not!
- Message content according to CASL is the similar to CAN-SPAM where your emails need to include the following:
- Clear identification of the sender (your organization)
- A working method to contact the sender (“no-reply” from addresses do not comply with CASL)
- Unsubscribe functionality that’s working for 60 days from send and that you process within 10 days
How is CASL 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 $1 million for individuals, and $10 million for companies. The CRTC does have the ability and authority to operate trans-border and bring proceedings against offshore organizations – in short, they may come after you.
It is important to keep records of express and implied consent for recipients. According to CASL, in the event a subscriber complains, the sender (you) is required to provide proof of consent.
Although CASL takes effect on July 1, 2014 the Canadian Government has given all organizations a three year transition period, until July 1 2017, to collect and demonstrate express consent from their and new current marketing lists.
This means that you have three years to get express consent from implied consent recipients.
Note: Any express consent received prior to July 1, 2014 will be considered compliant with CASL, even if the newly-required elements were not included.
Common FAQ on CASL are available directly from the Government of Canada’s website at http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00050.html”
Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC): http://www.crtc.gc.ca/eng/archive/2012/2012-548.htm
Actual CASL law: http://laws-lois.justice.gc.ca/eng/acts/E-1.6/index.html
For information on current U.S. spam regulations read:
OpenMoves Disclaimer: Please be advised that this blog post is based on our interpretation of the Canadian Anti-Spam Law and its applications. This post is for informational purposes only and is designed to help you, as marketers, better understand the law and how it might affect you. We are not lawyers and nothing presented here is, or should be construed as, legal advice. Please consult your legal or compliance department for specific guidance in regards to adherence with the law.