Modern Marketing Blog

The Canadian Anti-Spam Legislation (CASL) returns

December 13, 2013 By: Kevin Senne

Disclaimer – This should not be interpreted as legal advice.  Please consult your own attorneys for specific legal guidance.

The on again – off again Canadian Anti-Spam Legislation (or CASL for short) has made a return to our consciousness this week, with the announcement that the legislation will take effect on July 1, 2014.  The law will roll out in gradual steps, with the private right of action not beginning until July 1, 2017.

In this post, I'll walk you through some of the most important provisions and things you should be thinking about over the next seven months before this becomes reality. It’s important to remember that this is not legal advice; you should always work with your own legal counsel for specific legal direction.

CASL has a long and checkered past of starts and stops that have confused marketers, who are simply trying to determine what the real world impact will be on their programs. It appears we’re actually on track for a launch this time, and this is a positive step. As marketers, the most difficult thing when trying to be responsible and compliant is uncertainty with laws and regulations.  The final version of CASL has removed many of those confusing grey areas with solid direction.

Some of the important provisions you should investigate for yourself:

  • Permission – CASL has an explicit permission provision.  This means that implied consent is not acceptable for gathering permission. There are multiple exceptions to the rule, including existing business relationships. Purchases qualify for this exception and the 24 month clock resets with every purchase.
  • Implied consent – There are multiple ways where a sender can obtain consent outside the required express consent. Personal or family relationships, inquiries, and several others.
  • The law applies to email that is accessed on computers in Canada.
  • Very different from CAN-SPAM in that this is not an opt-out, but an opt-in law. Allowing people the opportunity to opt-out does not satisfy the requirements. A pre-checked box is an implied consent method that won't be allowed.  Auto opting-in abandoned shopping carts and e-receipts for promotional mail will also be outlawed.
  • Private right of action – One of the most talked about pieces, this allowed individuals to bring suit. This will not take effect until July 1, 2017.
  • 3 year transition period – Senders have a 3 year grace period to gain consent of individuals.  Implied consent is sufficient during this period, but express consent must be gained to go forward after that period.
  • You should update your privacy policy, make sure you are recording consent for proof, and always have a working unsubscribe mechanism.

For most senders, consent is the area of biggest change. This shouldn’t be a surprise, as many other countries have already gone to this model. The reality of sending email today is that implied consent is not sufficient. Spamhaus blocks are just one of the dangers of operating in this manner.  Many recipients feel tricked if they receive email via these methods, and complain and hurt deliverability because of it.

There is great difficulty in trying to determine if a recipient is going to open an email in Canada and the risk is becoming too great not to strongly consider moving to an opt-in method of address collection.

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