Over the past few weeks, the topic of the new CASL (Canada
Anti Spam Legislation) has re-surfaced around the industry, since CASL will be
coming into effect July 2014 and will affect how email consent is defined and
collected. Compared to regulations in other regions, Canada’s Anti Spam
Legislation is particularly aggressive in terms of enforcing email consent.
What does this mean for email marketers? We’ve outlined key tenets of the new
law in order to help marketers better understand how CASL will impact their
email marketing programs:
What Is CASL?
CASL stands for Canada’s Anti Spam Legislation, a new law aimed
at regulating commercial electronic messages (CEM) that will come into effect July
What Are The Focus Areas of CASL?
- Consent: CASL focuses heavily on email
consent and how organizations should be collecting subscriber opt-in
- Recipient Focus: CASL was designed to
give the email recipient complete control over what messages they get and eliminate
all CEMS that the user hasn’t opted into.
- Further Defined ‘CEM’: CAN-SPAM covers
only email messages, where CASL will cover all forms of electronic messaging
ranging from email to SMS. CASL defines CEM as any electronic message that
encourages participation in a commercial activity, regardless of whether there
is an expectation of profit.
How Does CASL Impact Email Consent?
- Before CASL, marketers were able to send email
with either expressed or implied consent, as long as the email provides a valid
unsubscribe mechanism that the recipient can use to be removed from future
- Before CASL, marketers have been able to collect
email subscribers through pre-checking an opt-in box.
- Before CASL, marketers have been able to include
email consent in their terms and conditions of use or sale.
- After CASL, all marketers are required to have
expressed consent from email subscribers before sending them commercial email.
- After CASL, implied consent still applies but
only in limited circumstances:
- Email consent can be implied if the
marketer is sending an email as a result of an existing business or
- Implied consent can occur if recipients
willingly publish their email address and information online without specifying
that they choose not to receive CEMs.
- Implied consent can occur if recipients choose
to provide their email information to the sender without specifying that they
choose not to receive CEMs.
- NOTE: Implied consent becomes invalid after six
months if the recipient doesn’t become a client and in two years if an existing
client is inactive from purchasing, subscription or, account renewal.
- After CASL, marketers must receive a clear
consent from email recipients by having them check a box or manually input their
email address in a field.
- After CASL, marketers cannot include email
consent in their terms and conditions of use or sale.
Who Does CASL Apply To?
CASL applies to any marketer sending commercial electronic
messages (CEM) to or from Canada. This means that
while emails are included, CASL also regulates other forms of electronic
messages such as SMS, Instant Messages and social media messages.
What Are the Potential Impacts of not Complying with
The fines for not complying with CASL, once it is fully in effect,
can be up to $10 million per violation. There are also criminal charges that
apply to organizations that mislead recipients with false sender information
within a commercial electronic message.
How Can Marketers Comply with CASL?
After thoroughly reviewing the email consent requirements
under CASL, marketers should be assessing their current email consent process
to understand what, if any, changes need to take place over the coming months
to comply with CASL.
We strongly advise that all marketers consult their ESPs and
legal counsel over the coming months to adequately prepare for CASL coming into
Quick step-by-step guide on CASL*:
*Adapted from Deloitte''s Managing the Message. http://www.deloitte.com/assets/Dcom-Canada/Local%20Assets/Documents/ERS/ca_en_ers_spr-CanadaAntiSpam_120712.pdf. December 2012