What Canada’s New Anti-SPAM Law
Means to Marketers
7 KEY STEPS TO PREPARE
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Getting Ready for Canada’s Anti-Spam Law | 1
What Canada’s New Anti-SPAM Law
Means to Marketers
“Consent” is the biggest issue: here are 7 key steps to prepare
This summer, Canada will implement landmark
anti-SPAM laws regulating how businesses and
organizations may send promotional email, text,
social, and other messages to Canadian recipients.
The Canadian Anti-SPAM Law (CASL) is set to come
into force on July 1, 2014, and its stipulations and
consequences are more severe than those of CANSPAM, the U.S. anti-SPAM law.
This document focuses almost exclusively on the
“consent” aspect of CASL because of its direct impact
on digital marketers. There are many other important
dimensions that are not addressed here. Be sure to
consult your legal team or attorney(s) to understand
its full implications.
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Unlike CAN-SPAM, CASL’s hallmark is that it does
require senders to obtain consent. The law breaks
consent down into two categories:
• Express Consent
a
• Implied Consent
b
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Express Consent
requires that a sender acquire “a positive or explicit indication of consent” from recipients
BEFORE sending messages. The classic example of Express Consent is a recipient affirmatively selecting an empty
check box associated with clear and concise opt-in language.
Implied Consent is
when the sender and recipient are engaged in an ongoing business relationship, and it can
be inferred that the recipient has consented to receiving mail from the sender. So by definition, Implied Consent
has “start” and “end” dates.
CASL gives examples of Implied Consent and associated expiration dates:
Existing Business Relationship (est. prior to 7.1.14)
3 years
Purchase Made
2 years
Volunteer Work/Meeting Attended (Charity/Political)
2 years
Inquiry or Application
6 months
Membership/Subscription/Account/Lease
2 years from expiration
Contract between Sender/Recipient
2 years from expiration
In order to avoid possible financial penalties and issues with disgruntled recipients, senders need to review their
marketing policies and procedures to make sure they are in compliance with CASL’s consent provisions.
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There are specific exemptions to CASL’s consent provisions. They are:
•
•
•
•
•
Registered charities seeking donations.
Political candidates seeking donations.
Newsletters that do not contain any commercial/promotional content
Messages sent from outside of Canada, provided that the sender has performed their due
diligence and could not reasonably ascertain that the recipient was in Canada.
Messages sent to enforce a legal right (like debt collection, licensing or contractual
obligations).
7 Steps to Compliance
Though the law’s provision granting private Canadian citizens the right to sue alleged spammers doesn’t go into
effect until 2017, organizations are required to be in compliance before July 1, 2014.
Here are seven fundamental steps to becoming CASL compliant:
1 1.
Due Diligence Defense. Fortunately, CASL does provide something for senders: CASL states that
senders have a viable defense if it can be demonstrated that “due diligence” was exercised in attempting
to comply with the law. This may be the most compelling reason to pursue compliance: by merely doing
so, you may be insulating your organization from legal liability.
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2 2.
Identify your Canadian recipients and the type of consent you have for them.
One of the
ambiguous areas of CASL concerns the issue of identifying email addresses from Canada. Because millions
of Canadians use email addresses from free domains like Google and Yahoo (i.e. address with no .ca at
the domain’s end), and don’t always provide senders with their personal information, the sender often has
no idea of the recipient’s location.
The law states that senders are required to apply CASL guidelines to those recipients that they can
‘reasonably ascertain’ are from Canada.
Here are a few ways to identify Canadian recipients:
•
Domain name: the easiest and most reliable way to identify Canadian recipients would be to
segment recipients whose email addresses ending in ‘.ca’. To perform this search in Real Magnet:
Contacts>Simple Search>Email:Limit Search>Ends With .ca. From here, you can export the list or
add it to a group.
•
Personal information recipients have provided: identify anyone in your database with a
•
Cross-reference business domains: because many organizations use their own domains in their
•
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physical Canadian address
email addresses, you can cross-reference domain names with company locations.
Geolocation of their IP address: the location of an IP address does not always relate to the
actual location of recipients. Due to the rather large possibility inaccuracies, this method should be
used sparingly if at all.
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3 3.
I.•
Reach out to Canadian recipients to acquire Express Consent.
communicating with your Canadian recipients:
Here are a few ideas for
Update or create landing pages dedicated to collecting consent. Scour your organization to
identify existing consent forms and ensure they are CASL-compliant. If you don’t have a Consent Page,
create one. The language in the grey area of the Landing Page below is based on direction provided by
the Canadian Radio-television and Telecommunications Commission, one of the agencies responsible for
enforcing CASL.
You’ll note that the check-box is
not pre-selected. A key provision
of the law states that consent
acquired via the use of preselected check-boxes DOES NOT
equal Express Consent.
CASL Consent Page
acme.com/canadian-consent
Acme Co.
Home | About | Products | Services | Contact
Canadian Anti- Spam Compliance
Based on Canada’s Anti-Spam law, we are not allowed to send you
messages without your express consent. To continue enjoying the
benefits of our communications, please select the check box below.
I agree to receive Company Inc.’s newsletter containing news, updates and
promotions regarding Company Inc.’s products. You can withdraw your consent at
any time.
CONSENT
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Below is an example of how an existing form (here, a preference management page) can be updated to include a
link to your Consent Page.
Manage Subscription
acme.com/subscription-management
Acme Co.
Home | About | Products | Services | Contact
Manage Your Newsletter Subscription
Please check off the newsletters below you are interested in receiving.
Canadian? To continue receiving our messages, click here.
International News
Product Updates
Company Finance
New Technology
Receive weekly summaries on Acme’s international
ventures.
Receive daily stock news.
Receive updates on Acme’s new product offerings as
well as sale announcements.
Receive Acme’s research and development newsletter.
UPDATE
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Remember, if you do not acquire the Express Consent of
a recipient, and there is no Implied Consent either, then
CASL requires you to discontinue sending messages to that
recipient – including messages seeking his/her consent!
•
II.
Send a dedicated email to all identifiable Canadian
recipients asking them for their consent. Make your appeal
Acme Co.
Monthly Newsletter
in the body of the email and include the link to your consent
landing page.
•
III.
Embed a notice in all of your email templates , even
if only on a temporary basis, that provides a link to your
dedicated Consent Page.
Lorem ipsum dolor sit amet, consectetur
adipisicing elit, sed do eiusmod tempor
incididunt ut labore et dolore magna aliqua.
Ut enim ad minim veniam, quis nostrud
exercitation ullamco laboris nisi ut aliquip ex
ea commodo consequat. Duis aute irure
dolor in reprehenderit in voluptate velit esse
cillum dolore eu fugiat nulla pariatur.
Acme Co 2014. All Rights Reserved.
55555 Main St. | Washington, DC 20000
Canadian? Give us consent to
keep receiving our emails.
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4 4.
Documenting Implied and Express Consent.
squarely on the shoulders of senders.
CASL places responsibility for documenting consent
The Canadian government does not provide a concrete list of required information, or a specific format,
regarding how they expect consent to be documented. Instead, they have provided guidelines regarding
key pieces of information that will make it easier for the sender to prove that they have done their due
diligence.
These key pieces of information are:
•
•
•
•
How consent was acquired – orally or in writing (on paper or electronically)
When consent was obtained – date and time
Where consent was obtained – via a website, or in a physical location, etc.
The specific method implemented to obtain consent
Consent acquired orally must be in the form of an unedited audio recording, or in a way that is verifiable
by an independent third party. Since the onus of proof is on the sender, the more information that you
can gather the better!
Since Implied Consent has a specific expiration date, being able to identify when someone’s Implied
Consent expires is critical to remaining CASL compliant. Therefore, it should be a top priority to document
when and how you receive Implied Consent (method, date and time) from your recipients, so you can
determine and track when their Implied Consent expires.
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5 5.
Turn Implied Consent into Express Consent.
You should do everything you can to secure Express
Consent before the Implied Consent legal timeframe expires. Step three outlined three fundamental tactics
to employ in order to give you greatest chances of retaining the highest percentage of your Canadian
recipients:
•
•
•
Updating and creating dedicated landing pages to collect consent.
Sending a dedicated Email to all your Canadian recipients.
Embed a notice at the bottom of your email campaigns.
Use Marketing Automation tools, like those in Real Magnet, to create an automated campaign informing
recipients with a series of reminder messages that their implied permission is about to expire, while giving
them a chance to explicitly consent to receiving your messages.
6 6.
Implement internal policies for CASL compliance.
In order to remain CASL compliant, make sure
that everyone in your business or organization is on the same page regarding CASL regulations. Set up
internal policies and procedures so that anyone sending messages understands how they are expected to
handle recipients that fall into various CASL categories.
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7 7.
Make sure your partner/ vendor contracts are CASL compliant.
Many businesses and
organizations employ outside companies to develop marketing materials, and even to create and send
promotional emails on their behalf. It is of absolute importance to understand that any message sent to
Canadian recipients on your behalf, even by a 3rd party, is considered YOUR responsibility under CASL.
For this reason, it is critical to make sure that any contract you have with an outside vendor or partner
who is doing marketing on your behalf states that they are explicitly, contractually obligated to adhere to
CASL guidelines.
Final Point:
Start your CASL compliance immediately and contact your lawyer!
Implementing these steps will help you comply with CASL regulations and potential protect your organization from
legal liability. Still, the law includes vague language and grey areas, so we strongly recommend that you seek legal
counsel to make sure you’re adhering to all of the stipulations outlined in Canada’s Anti-Spam legislation.
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ADDITIONAL RESOURCES:
•
Canadian Radio-television and Telecommunications Commission
•
Canada’s Anti-Spam Legislation
•
Canadian Chamber of Commerce
•
US Federal Trade Commission
•
Cornell University School of Law
•
David Spratley of Davis LLP
•
Éloïse Gratton of McMillan LLP
http://www.crtc.gc.ca/eng/casl-lcap.htm
http://fightspam.gc.ca/eic/site/030.nsf/eng/home
http://www.chamber.ca/resources/casl/
http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business
http://www.law.cornell.edu/wex/inbox
http://www.lexology.com/library/detail.aspx?g=9d6a2d70-27df-4646-a46c-b1b6586df800
http://www.canadianunderwriter.ca/news/gaining-consent/1003031457/?&er=NA
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Tom VanOstrand
Real Magnet
Tom joined Real Magnet in December of 2013 as the
Senior Director of Deliverability. His responsibilities
include helping onboard new customers, quickly
troubleshooting deliverability issues, improving
Real Magnet’s overall sending infrastructure, and
providing key industry insight and thought leadership
on the latest Deliverability trends. Before coming
to Real Magnet, Tom spent over 15 years in the
software development industry, including three
years at iContact where he built and managed their
Deliverability Engineering team, and helping an
Internet marketing company build its own internal
email marketing infrastructure.
Real Magnet offers a cloud-based marketing and
analytics platform that allows organizations to
connect with the right audience, via the right
channel, at the right time. The platform’s multichannel messaging services - including email, social,
mobile, and SMS - insightful analytics, automation
tools, and CRM integrations is enabling its 1000 plus
customers to become smarter, more targeted and
successful marketers. The company is privately held
and based in Bethesda, MD.
www.realmagnet.com