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A Detailed Look at Email Consent and Canada’s New Anti Spam Legislation (CASL)

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December 18, 2013 - By Brad van der Woerd - Email Deliverability

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 2014. 

What Are The Focus Areas of CASL?

  • Consent: CASL focuses heavily on email consent and how organizations should be collecting subscriber opt-in information.
  • 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:

  • 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 mailings.
  • 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:

  • 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:
  1. Email consent can be implied if the marketer is sending an email as a result of an existing business or non-business relationship.
  2. Implied consent can occur if recipients willingly publish their email address and information online without specifying that they choose not to receive CEMs.
  3. Implied consent can occur if recipients choose to provide their email information to the sender without specifying that they choose not to receive CEMs.
  4. 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 CASL?

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 effect. 

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

About the Author
, Director, Market Intelligence & Deliverability - Brad van der Woerd has been deeply involved with digital marketing and the email deliverability space for the past 5 years. Since becoming Director of Deliverability for Yesmail in 2011, Brad has created business strategies for various Fortune 500 companies (HP, eBay, Coke) to assist with overall deliverability rates and maintain positive reputation within the industry. Brad’s experience at Yesmail includes a deep understanding of how marketers today can grow their email engagement and audience through multiple digital channels, while sustaining strong deliverability and generating the most ROI possible.