July 01, 2014

New Changes to the Canada Anti-Spam Law (CASL)

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Blame Canada (just kidding)

If email marketing is as critical to your business as it is to ours, then you've probably heard that changes to the Canada Anti-Spam Law (CASL) go into effect today, July 1st, 2014. If you haven't heard about the CASL changes, then you should pay attention too.

The changes make CASL the world's toughest anti-spam and anti-malware legislation, and as such will majorly impact all business and individuals who use email to get in touch with prospects and customers in Canada. If you fall into this category, it's important that you know what lies in store so that you can ensure that all of your communications fully comply with these stringent regulations.

To better understand CASL and how it will affect business in Canada and beyond, we interviewed expert Shabana Ahmad to keep us and our loyal readers informed. Read the interview below, and don't hesitate to pass it on to any of your friends or family who might also be affected by these legal changes.

Photo credit: responsys.com

Disclaimer: Contactually's interview with Shabana does not constitute legal advice. If you have customers or subscribers in Canada, we recommend speaking with legal council on your own behalf.

Q: What is the Canada Anti-Spam Law? What recent changes were made to the law?

A: The Canada Anti-Spam Law (CASL) is literally the world's toughest anti-spam and anti-malware legislation. It's been in effect for the past four years, was enacted in December 2013, and will have new changes starting on July 1st, 2014. The new regulations apply to any commercial electronic message (CEM), or any electronic communication that sends a message encouraging the recipient to take part in a commercial activity (e.g., any product promotion, advertisement, marketing message and more) sent to or from Canadian email addresses.

If you're sending marketing emails to your customers or subscribers, that's permitted by CASL provided that your email has three requirements: 1. that you've obtained implied or expressed consent, either written or verbal; 2. that you provide identification information in your email, meaning that the message must come from a person rather than a no-reply address, and includes contact information like a physical mailing address or phone number; and 3. that your email has an unsubscribe mechanism allowing people to opt our from your communications.

Additionally, there are specific provisions that will be phased into the law within the next three years, including the anti-malware component, set to take place on January 15, 2015.

Q: What is the difference between explicit and implied consent? How do I know if the contacts in my database or on my mailing list fall into either category?

A: There are two types of consent, explicit and implied, that will allow you to continue to email your subscribers and customers. You must obtain at least one type of consent in order to send messages to these people.

Explicit consent happens when a client or subscriber opts in through an opt-in form from an organization, for example, if you sign up for new software service or submit your email on a landing page before downloading an eBook. You must provide a clear description regarding why you're obtaining consent in the first place. It's also considered explicit consent if you give your email address through your email service provider (ESP).

Each message must contain the three requirements highlighted above in order for it to be valid. This kind of consent never expires, unless the recipient unsubscribes from the mailing list. Additionally, it's the responsibility of the sender to prove that he/she/the company has consent to send a message to the recipient, in order to protect both the subscriber and the email author.

Pro tip: it's a good idea to segment your email marketing list and creating different subscribe lists so that your subscribers can pick and choose the types of emails they receive and avoid potential problems with this.

Implied consent is a little bit more complicated. This type of consent occurs when a subscriber has an existing business (e.g., is a customer) or non-business (e.g., is a prospect that has received a quote or a proposal for a project) relationship with an organization. Without an additional opt-in step, this type of consent expires after six months.

In either case, organizations must offer the ability for a recipient to easily unsubscribe from a mailing list, for example, with a working unsubscribe link at the bottom of an email. These links must be functional, may not incur a cost to unsubscribe, and must be valid for up to six months after the message was originally sent. Additionally, organizations must process unsubscribes without delay, at the very longest 10 days after the request was made.

There are a handful of electronic messages that are exempt from CASL's stipulations for various reasons, including those sent to friends or family members. For the whole list, consult MailChimp's CASL blog post.

Q: What are the penalties for violating CASL?

A: Individuals can be fined up to $1 million per email sent, while organizations can be tuned up to $10 million per email sent.

Once the Private Right of Action (PRA), a provision to the existing law, comes into effect in 2017, individuals will be able to sue individuals and organizations that they feel are spamming them. It's important to note that the platform used to send the spam message is liable for the messages sent in addition to those who actually send the message.

Q: How can Contactually be used to ensure anti-spam compliance?

A: You can use Contactually to reach out to your contacts in order to get their consent. It's also a great practice to use Contactually's system of Buckets to segment your contact database into those who have opted in to your communications, and those who have not.

Additionally, as Contactually doesn't currently have an unsubscribe feature, it's a good idea to include a quick sentence in your email signature letting your contacts know that they can unsubscribe from your electronic communications by replying with "unsubscribe" in the subject line or message body.

If you have any other questions about CASL and how the law may affect you and your business, feel free to reach out to Shabana Ahmad, which you can do by visiting her website. Additionally, if you'd like to read the full text for the law, you can do so by clicking here.