What Canada’s Anti-SPAM Law
Means to Marketers
7 STEPS TO CASL COMPLIANCE
What Canada’s Anti-SPAM Law Means to Marketers
Background:
Back in July of 2014, the Canadian Anti-Spam
Law (CASL) was put into effect, setting
stipulations and consequences that were
designed to be more severe than those of
CAN-SPAM, the U.S. anit-spam law.
While CAN-SPAM has no stipulations that
require senders to acquire consent from a
recipient, CASL’s hallmark is that it requires
senders to obtain “a positive or explicit
indication of consent” from recipients
BEFORE sending them messages. And it
should be noted that CASL applies to all sorts
of messages – including text, social, and SMS.
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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 a recipient “…willingly and consciously agreed to receive mail from the sender.” The classic
example of Express Consent is a recipient affirmatively checking a box associated with clear and concise optin language. This language should clearly identify the sender and include a statement that the recipient can opt
out at any time.
Implied Consent applies when the sender and recipient are engaged in an ongoing business or non-business
relationship, where it can be inferred that the recipient is interested in receiving mail from the sender.
Guidance from Canadian experts indicates that a primary purpose of sending messages with implied consent
should be to request express consent from the recipient.
Here is how CASL defines Implied Consent and the associated expiration dates:
Purchase Made
2 years
Donation/ Gift Made (Charity/Political)
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
Just how important is the consent requirement? Between July 2014 and May 2016, the Spam Reporting
Center received over 545,000 complaints of CASL violations. 93% of these claims focused on violations of
consent requirements.
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Changes to CASL in 2017
On July 1st, 2017 the Private Right of Action (PRA) provision takes effect. Under this provision,
recipients who have received communications that violate CASL can sue the sender for both actual
and punitive damages.
In order to avoid possible financial penalties, legal entanglements, and issues with disgruntled
recipients, senders should continue to ensure that their marketing policies and procedures are in
compliance with CASL.
Here are 7 steps to help your organization stay in compliance when contacting Canadian
residents:
7 Steps to Compliance
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
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. Since 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
•
Cross-reference business domains: because many organizations often use their own domains in
•
Personal information recipients have provided: identify anyone in your
recipients who have email addresses ending in ‘.ca’.
their email addresses, you can cross-reference domain names with company locations.
database with a
physical Canadian address.
•
Geo-location of their IP address: the location of an IP address does not always relate with the
actual physical location of the recipients. Due to the possible inaccuracies, use this method sparingly.
•
Billing address or payment method: if a recipient is paying for goods or services, you can identify
addresses or financial institutions based in Canada.
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Even if you use all the suggested options, you’re still likely to miss some Canadian recipients. That’s why best
practices dictate CASL compliance for all messaging to any recipient.
3
Reach out to Canadian recipients to acquire Express Consent.
Here are a few ideas for
communicating with your Canadian recipients:
I.
•
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 pre-selected
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.
•
III.
Be proactive. Send a dedicated email to all identifiable
Canadian recipients asking them for their consent. Make
your appeal in the body of the email and include the link to
your consent landing page.
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.
Acme Co.
Monthly Newsletter
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.
Document Implied and Express Consent. CASL guidelines provide specific time limits for
implied consent. Implied consent applies when the recipient has not explicitly stated that
they want to receive the sender’s messages, but there is an ongoing business relationship
that implies that the recipient is interested in hearing from the sender.
Being able to identify when someone’s implied consent expires is critical to remaining CASL
compliant. Keep records on these points as they pertain to your Canadian recipients:
•
•
•
•
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
In addition to documenting dates for implied consent, it is crucial to maintain records that
establish when, where, and how express consent was obtained. This typically includes
documenting the date, time, and IP address from which someone provided express consent,
as well as the URL of the page visited. If the form has changed, it’s a good idea to keep
image documentation of each iteration of the form so it can be tied to the date someone
provided consent if needed.
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5 5.
Turn Implied Consent into Express Consent. Once you’ve documented the implied consent
you have for your recipients, and the expiration dates associated with them, you can launch campaigns
to:
•
•
Convert implied consent into express consent.
Suppress those who have not provided express consent.
One way to convert implied consent into express consent is to launch a campaign, similar to a
membership renewal campaign, that would inform the recipient 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
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
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.
Implementing these steps within your business or organization will help you get up to speed with CASL regulations and avoid
potentially costly violations.
Final Point:
Contact your lawyer!
The law includes vague language and grey areas, especially concerning the concept of implied consent. Any
advice provided here should be taken as best practice guidance and not legal counsel.
As explained above, CASL allows for senders to reach out to recipients with whom they have a pre-existing
relationship, (e.g. donors, members, volunteers, recent purchasers) even if express consent has not been
provided. Because these relationships are not all clearly defined, there is quite a bit of room for interpretation.
As a result, senders should try to establish express consent as quickly as possible.
To make sure your organization is in compliance with all of CASL’s requirements, we recommend that you seek
legal counsel before sending (or continuing to send) promotional messages to recipients in Canada.
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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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