CASL. IS. HERE.
On July 1, 2014 section 6 of the new Canadian Anti-Spam Legislation (CASL) went into effect. Canada does not fool around when it comes to the consequences for violating this law. Monetary penalties can cost a pretty penny, up to $1 million for individuals and $10 million for companies. In order for section 6 of CASL to apply, “a computer system located in Canada must be used to send or access a commercial electronic message (CEM). Simply routing a CEM through Canada is not enough to engage section 6.” These rules are applicable to you if your emails are received in Canada, no matter where you or your company is stationed. While there are similarities between CASL and CAN-SPAM in the U.S., there are also more demanding requirements that must be followed. CASL is strongly focused on opt-ins rather than opt-outs. Unlike CAN-SPAM, allowing Canadians the opportunity to opt-out alone does not satisfy the requirements. When it comes to CASL, the important word to remember is “CONSENT”! The entire law is extremely long, but we’ll sum up the key requirements that need to be followed for email marketing. There are two types of consent under CASL – expressed and implied. Express consent can be obtained either in writing or orally. In either case, the onus is on the person who is sending the message to prove they have obtained consent to send the message.
Express consent must include the following:
- Purpose of the email.
- Detailed contact information for all parties involved.
- Opt-out options to withdraw prior consent (unsubscribe mechanism).
The manner in which you request express consent cannot presume consent on the part of the end-user. Silence or inaction on the part of the end-user also cannot be construed as providing express consent. For example, a pre-checked box cannot be used, as it assumes consent.
Consent can be implied if:
- You have an active business relationship with the contact.
- The contact information was found on a public website with no disclaimer.
- The contact information was given without indication they do not want to receive your messages.
It is important to remember that the 36 month “implied consent” period ends on June 30, 2017. You should use that window to gain express consent to continue sending CEMs. Much like CAN-SPAM, it is required that all CEMs identify who they are coming from and contain a physical mailing address. The emails must also include correct contact information along with an easy “opt-out” mechanism. Before July 1, 2014 you should locate and identify your Canadian contacts, if possible. It is important to check what opt-in mechanisms you had in place when those contacts were added to your list to ensure you are not in violation. Review your privacy policies as well to ensure that they are not in violation. It is better to play it safe! Learn more about CASL at: https://www.fightspam.gc.ca/eic/site/030.nsf/eng/home
Need help making sure your email marketing is CASL compliant? Contact the experts at Active Web Group and let us help you.
Disclaimer: This is not legal guidance and you should consult your own counsel for legal advice on how to interpret CASL.