Canada rolled out a new anti spam law (the CASL) in late June of 2014. The majority of the provisions of the new law are already in effect (as of July 1st), however there is a transitional period to seek “explicit consent” from people you already have a business relationship with, more on that in a moment.
You might be thinking, I don’t live in Canada, so who cares? Well if you run a business that might have Canadian customers, you have to care. If you have gathered email addresses for a list, it’s quite likely that some of your subscribers are Canadian. And while some of them might have a .ca email address, plenty more will have used a free email service such as gmail or hotmail, so you really can’t tell who are the Canadians on your list.
So you might as well assume that you need to comply with CASL, which is more restrictive than the US CAN-SPAM Federal Act.
I’ve spent some time reading through the law text and various articles, and here’s what I’ve learned. Now I’m not an expert, on any law, Canadian or otherwise, but this post should serve as a starting point. If you want to learn more, I would suggest reading Michael Geist’s articles that can be found on the Toronto Star, since he IS an expert on Canadian Internet Law.
The three requirements of the law
The three requirements of the CASL are:
- Identification
- Consent
- Unsubscribe mechanism
Identification: means that you need to clearly identify who are you and any business name by which you do business. You also need to provide a physical mailing address. Much of this is already required by email service providers such as the one I use which is AWeber.
Consent: This is the interesting part of the law. If you are familiar with the US CAN-SPAM law, you know it is an opt-out based law. Essentially CAN-SPAM says that you need to provide a way that people can opt out of your list. The Canadian law is stricter in that it is an opt-in based law. You need to get express content to add a subscriber to your list. Express consent can be:
- Typing in an email address into an opt in form
- Checking a box to indicate a willingness to receive emails from you
What’s not express content is a checkbox that is already checked for you. Per the Canadian Radio-Television and Telecommunications Commission Website: “The end-user must take a positive action to indicate their consent … a pre-checked box cannot be used, as it assumes consent.” For example, I registered for a online forum today and it had a box pre-checked regarding receiving electronic communications. This is likely in violation of CASL.
There is also language in the law regarding implied consent. One way implied consent can occur is in the case of a referral or an offline business relationship. Say you met someone at a seminar and got their business card. You may add them to your list if the email you send them is relevant to that initial connection. You must still follow the other two components of the law: identification and providing an unsubscribe mechanism even in this more casual situation. Furthermore, in the situation of implied consent, the law states that the consent doesn’t last forever. You have two years (initially it’s three years to give everyone more time) to convert that implied consent to an express content. It’s this bit that has sent Canadian businesses into a tizzy sending out “opt in” messages to Canadians that had no clue they were ever on any list.
Unsubscribe mechanism: Finally, the law requires CEMs to provide an unsubscribe mechanism. This is pretty straightforward for online marketers that are using a reputable email service provider as it is built into the service.
What to do next:
- Check that you are meeting the identification requirement of the law (clearly identifying yourself, your business and providing a mailing address).
- Change any pre-checked checkboxes to be unchecked by default.
- Assess if you have any “implied consent” subscribers and figure out how to convert them to express content.
BTW: CASL does not apply to social media feeds such as your Facebook wall, but it does apply to any direct messages on those platforms. And there is a whole section of the law that governs installation of software programs that I didn’t address in this post.
Time for a re-engagement campaign?
While it’s not required by CASL and CAN-SPAM, it’s good practice to periodically prune your email lists. You can do this by unsubscribing/deleting any subscribers that haven’t opened your emails for more than six months. As lower subscriber count might even save you a bit of money depending on your vendor. However, with a bit of additional work, you may be able to re-engage those subscribers. If you are on AWeber, here’s a step by step way to segment those inactive subscribers and create a campaign for them.
Final thoughts
The new CASL law makes a lot of sense to me and it seems to do a better job of curbing abuses the CAN SPAM act permits. I particularly dislike being contacted by “partners” of a company that I have given my contact info to and/or having to explicitly opt out from receiving offers. However living in the US, that’s not going to change for me anytime soon. I also think the double opt-in mechanism is a bandaid to compensate for some of the weaknesses of CAN-SPAM. Sure I’ve heard the argument that double opt-in gives you a more engaged list, but based on a recent test, this post shows that double opt-in still reduces the size of your effective email list.
Overall time will tell how CASL will change the email marketing landscape. It will certainly be interesting to see whether US based companies will heed any of the requirements, especially since enforcement is likely to be in the form of warnings rather than fines in the short term. However after July 1, 2017, any individual will be able to sue an organization for sending spam as defined by the CASL, so it might just get more traction then.
