Nathan Yerian
Just yesterday, Canada's Anti-Spam Legislation (CASL) took effect. For inbound marketers and businesses that have Canadian leads or prospects, this poses quite a challenge.
CASL covers the sending of "commercial electronic messages" to residents of Canada. It aims to protect Canadians from spamming, hacking, malware, spyware, fraud, hacking, and other forms of privacy invasions. If your business sends any form of electronic messages to Canada, then you may want to review CASL thoroughly and make necessary adjustments to your strategies.
Who the Law Applies To
CASL applies to residents of Canada but is not limited to just Canadians. Anytime a device is used to access an electronic message in Canada it is subject to the law.
Basically, American business entities and professional organizations must abide by CASL on any correspondence with Canadians. Canadian businesses and organizations sending messages to those in the US on the other hand, need not comply by CASL for American recipients.
When Will CASL Be Enforced?
As of July 1, 2014, the new Canadian Anti-Spam Legislation (CASL) went into effect. If you were caught off-guard and are not quite prepared to accommodate the new law, don't worry, contacts who have an existing business relationship with your entity will be deemed as having granted their "implied consent" until July 1, 2017.
Unfortunately, for all other recipients and existing business relationships that started after July 1, 2014, you have about 6-24 months (depending on the situation) to make the necessary adjustments and ensure proof of consent from recipients.
However, contacts who have not given any consent at all cannot be sent any electronic message after July 1 2014.
What You Can’t Do
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You can’t send emails to anyone who has not explicitly opted-in
This is basically the heart and soul of CASL. With the new law in place, under no circumstance will anyone be allowed to send commercial messages to any resident of Canada without the recipient's consent. Businesses and organizations must be able to prove that their Canadian recipients have opted-in to any form of electronic communication they will be sending, otherwise they can be legally persecuted for doing so. -
You can’t ask for opt-ins in bundles
If you need your Canadian recipients to 'opt-in' on several different correspondences they can receive from you, you will now have to itemize each. Whether it is an ebook, email, whitepaper, or whatever type of message you are looking to send, Canadians will have to opt-in for each category according to the new law. -
You can’t keep pre-checked boxes in any sign-up processes
Pre-checked boxes are now against the law. Business entities and organizations are no longer allowed to keep pre-checked boxes in any forms or sign-up processes involving Canadian recipients. Instead, you can keep unchecked boxes which will constitute an explicit opt-in. -
You can’t hyperlink non-commercial content to any forms of advertisement
If you are sending a type of correspondence that has no overt commercial purpose -- say for instance a newsletter -- it must not contain a hyperlink to any form of advertisement or marketing piece. Doing so will count as a CASL violation, and your non-marketing piece (in this case a newsletter), will be subject to CASL's anti-spam rules. -
You can’t send messages using contact information that will no longer be valid 60 days after the messages are sent
Under CASL, business entities and organizations are required to include contact information of the business or the individual/s representing them. This contact information must remain valid 60 days after the message was sent. For companies who might at some point change URLs, storefront addresses, or phone numbers, this stipulation will prove to be quite challenging. Be sure to take this into account and plan ahead.
Not Just Emails
Unlike Canada’s previous anti-spam law known as CAN-SPAM, which covers only email messages, CASL applies to any mode of electronic transmission of commercial messages.
These “electronic messages” as defined by CASL covers the following modes of transmission:
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email
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sms
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facsimile
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instant messages
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social media postings such as ‘tweets’
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some forms of voice communications
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and even private messages on LinkedIn
Legal Ramifications
Business entities and other professional organizations who fail to abide by CASL’s legal standards and continue to send any form of “electronic communication” to any resident of Canada without being granted prior consent by the recipient will be punished by the Canadian government with a hefty fine of up to $10M.
On top of this, disgruntled recipients of these digital pieces who did not give their consent to receive them can individually pursue a lawsuit for up to $200 for every piece of electronic communication they receive.
Individuals Acting On Behalf Of Companies Can Be Held Liable Too
"Subject to a due diligence defense, any officer, director or agent of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is the subject of a proceeding." In light of this, it is important that companies develop a plan of action and put a system in place to protect their employees and the company in its entirety.
What You Can Do
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Review CASL and develop a plan
If you think CASL may apply to your business and business practices, it is recommended that you thoroughly review what the law entails to protect your entity from any legal persecution that may arise.
Once you have a clear idea of what the law entails and how your business may be affected, you must re-asses your existing policies and marketing practices and adjust them in compliance with the law. -
Replace form opt-outs with opt-ins
“Opt-outs” will no longer be an acceptable process. If your forms are set to ask recipients to opt-out, replace them with 'opt-ins' instead. Make sure to replace this in all of your forms, and add it to any contact information collection forms that did not previously have it. -
Seek legal guidance
If you think your business will be significantly affected by CASL and would like to make sure that you have the necessary safeguards in place, it is best to discuss the matter with a lawyer.
Inbound marketing strategies rely on nurturing relationships with clients and prospects through content and communication. With CASL's legal framework in place, it is definitely extra challenging to find ways to nurture relationships with Canadian prospects. However, CASL may not necessarily be a bad thing. In a way, CASL challenges marketers to be more creative and to create high-quality content of value that will enchant prospects to continue (or forge) relationships with them.
