Will Canada’s Anti-Spam Law CASL Bill-28 Affect Your Email Marketing?

Will Canada’s Anti-Spam Law CASL Bill-28 Affect Your Email Marketing

In December, the government of Canada announced that they will be bringing Bill-28 into law as of July 1, 2014 with the full effects beginning the following year. This bill is part of the overall CRTC 2012-2015 plan to modernize Canada’s communication systems which includes reviews of radio policy and public alert systems, mandatory telemarketing fees, and Bill-28, Canada’s new Anti-Spam Law.

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This is the first step in balancing corporate needs for online marketing with an individual’s right to privacy and means that any company sending electronic communications must comply with the law or face stiff fines. This law will affect every company wishing to market to Canadians but many are woefully unprepared for the change, or even aware of it.

The Canadian Marketing Association already recommends the best practices under CASL as they embraced the American equivalent CAN-SPAM many years ago but it is likely that many marketers have been too busy generating leads to pay attention to the coming changes. This is worse south of the border: A report from the law firm Fasken Martineau DuMoulin LLP has shown that 60% of marketing executives had no knowledge of the law. But it does not matter if they are unaware, the law still applies.

This change affects all major companies but American companies will only have to change their behaviour towards Canadians. Canadian businesses who have been following the best practices outlined by the Canadian Marketing Association can enjoy business as usual.

Canada’s Anti-Spam Law vs. CAN-Spam

The biggest difference between CASL and the United States’ CAN-Spam act is the concept of “express consent” but this small difference can have big consequences.

Express consent means that companies are no longer allowed to send an email to someone who has not explicitly opt-in to receive communications from you. This includes all existing prospect lists as well. In fact, companies will be unable to contact prospects even to ask if they wish to receive digital communications.

Practically this means that “opt-outs” will no longer be an acceptable process. Opt-outs refers to the extremely common practice of including a pre-checked Subscribe to our newsletter checkbox at the bottom of a form when collecting email addresses from users downloading material or creating an account in your store. This practice is acceptable under the CAN-Spam act but once CASL goes into effect, companies marketing to Canadians will be required to leave these checkboxes blank and hope that users will opt-in.

CASL may be the final nail in the coffin of businesses relying on mailing lists and prospect databases but these methods are no longer very effective with click-through rates at an all-time low. Marketers will need to become more clever in the way they think about lead generation with am emphasis on content publishing, building a relationship with their customers, and supplying information when it is desired and through the channel they choose.

The requirement for express consent applies to virtually every form of digital communication including:

  • Emails;
  • Texts;
  • Faxes; and
  • Private messages on LinkedIn.

The specific term used in the law is “electronic communication” which can be widely applied to include a number of communication methods.

Penalties

Corporations which continue to send out emails and other forms of “electronic communication” without express consent can be fined up to $10M while individuals can be fined up to $1M. In addition, receivers of such emails can sue for up to $200 per transgression.

Ultimately this law is not really about reducing the amount of spam that Canadians receive it is about ensuring that businesses follow best practice by providing a legal framework that requires them to do so. It will also give law enforcement the tools they need in order to deal with spammers.

How to Prepare

Will Canada’s Anti-Spam Law CASL Bill-28 Affect Your Email Marketing

Before July 1 comes around, it is important for companies to spend some time getting their processes in order to ensure they will comply with these changes. To get your company prepared, follow these 5 steps:

    • Review CASL and Create a Plan

Start by identifying which practices need to change and then make a plan for how you will address each change. Prepare expiry processes to remove illegal emails from your database when you are unable to get consent.

    • Replace Opt-Outs with Opt-Ins

Go through all of your email collection processes and ensure that all opt-outs are replaced with opt-ins. This includes forms that request an email address such as sign up forms on your website, lead sheets, eCommerce forms, and everything else.

    • Contact Prospect Database While You Can

Over the next few weeks before CASL comes into effect your number one call to action should be requesting consent from your prospects and current customers. If your company sends primarily advertising then you may wish to consider expanding your messaging campaign to include useful, informative content in order to help convince people to opt in.

    • Create Auditable Process

Protect your company from false accusations by creating an auditable process to demonstrate compliance with the statutes outlined in CASL. If the CRTC comes knocking, it will be your company’s responsibility to prove compliance and having a simple process in place will make your life much easier.

    • Use Up-To-Date Tools

If your company does not make use of third party email services, now is the time to consider it. MailChimp, Vertical Response, Constant Contact and many more are available for companies of any size and feature a host of tools aimed at making it easier to comply with this new spam legislation.

For American companies interested in the exact differences between CASL and CAN-Spam, click here for a handy SlideShare that will explain.

Post By Emily Ramsey (44 Posts)

Emily Ramsey is a native Torontonian who enjoys craft beer, delicious food, and all things Internet, especially cats. She writes on a wide variety of topics and has a voracious appetite for acquiring new knowledge.

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3 Comments

  • avatar

    Great article! I’m curious to know how the new CASL legislation will affect non-Canadian companies sending communications to Canadians?
    Thanks!

  • avatar

    A couple of additional points.
    1. CASL applies to messages sent by foreign entities to those in Canada. So it is not only Canadians who need to follow this new law. Those outside of Canada are impacted as well.
    2. There are exceptions to CASL which, depending on the circumstances, may allow a business to send specific types of messages to specific types of recipients, unless a recipient has advised they do not want to receive such communications. At a minimum, the Industry Canada (http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00050.html) and CRTC (http://www.crtc.gc.ca/eng/com500/faq500.htm) FAQs should be consulted, and if budget affords, legal counsel should be consulted to navigate what is viewed by many as the world’s most strict anti-spam law.
    Please note this message is for informational purposes and is not legal advice. Advice tailored to your circumstances should be obtained to ensure that your business is compliant with the law.

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