Email marketing campaigns are an affordable and valuable tool for all types of businesses to broaden their reach in the market today. If used properly, they facilitate communication with existing customers and provide a platform to expand your customer base. However, Canada has recently passed the Canadian Anti-Spam Legislation (“CASL”), which regulates how such email marketing campaigns can be done. Non-compliance with CASL can result in crippling monetary penalties.
On July 1, 2014 the first changes to Canada’s outdated anti-spam legislation came into effect in the form of CASL. The purpose of CASL is to govern how businesses interact with their existing or potential customers through “commercial electronic messages” (CEMs). A CEM is any message with a purpose to encourage participation in a commercial activity. This is a broad definition and as such, applies to-email marketing campaigns commonly used by businesses today, subject to certain exceptions. The object of CASL is to allow businesses to effectively communicate with their customer base and compete in the global marketplace while protecting Canadians from unwanted spam.
The rollout of CASL has taken place in parts. The legislation will come into full effect on July 1, 2017. As of July 1, 2014, CEMs can no longer be sent without at least “implied” consent from the recipient. As of January 15, 2015, new rules surrounding the installation of computer programs came into effect. As of July 1, 2017, the sections of the legislation pertaining to a private right of action for consumers against companies that breach CASL will come into effect.
Notwithstanding an applicable exception, there are three major components encompassing compliance with CASL: (i) obtaining consent; (ii) discernible identification information; and (iii) the presence of an unsubscribe mechanism.
There are cautionary steps businesses can utilize to ensure compliance with the consent requirements under CASL. One of the most important steps is to receive an explicit “opt-in” from recipients prior to sending them any CEMs. Unlike in the United States, getting consent requires positive action from the recipient and therefore the use of “opt-out “or pre-checked opt-in boxes are not considered to be valid consent in Canada. Consent to receive CEMs must be given separately from consent to terms and conditions or other types of consent or acknowledgement you seek from your potential recipients.
Depending on the type and length of an existing client relationship, you may not have to get explicit consent from the recipient of your CEM. This being said, express consent attained through proper opt-in mechanisms is always preferred. Express consent will remain valid until revoked by the recipient. The onus of proving consent remains with the sender of the CEM and therefore thorough records should be kept.
Once consent is obtained and you’re ready to start sending CEMs, the next requirement to satisfy surrounds identification information contained within the CEM itself. The sender’s identity, or the identity of who the CEM is being sent on behalf of, must be included in the message. Furthermore, the sender’s contact information, including a mailing address and a telephone number, email address, or website must be contained within the message. The contact information must remain valid for a period following the transmission of the message.
Lastly, each CEM must contain a mechanism allowing the recipient to unsubscribe from any future communication at no personal cost. If this is done by re-directing the recipient to a website, that website must also remain valid for a period of time following the transmission. In the event a recipient unsubscribes from future communication, that recipient must be removed from the mailing list no later than 10 days after the un-subscription.
There are further requirements that businesses must comply with under CASL, CASL applies generally to people and businesses using electronic channels to promote their business or communicate with their customers. Compliance is mandatory and non-compliance can lead to a magnitude of negative consequences. As such, if you are worried that your current electronic marketing efforts do not comply with CASL, you should contact Aluvion’s team of legal professionals to get the advice you need.
