06/30/2014 05:36 EDT | Updated 08/30/2014 05:59 EDT

How to Safeguard Your Business from Canada's New Anti-Spam Legislation?

What is CASL?

Canada's Anti-Spam Legislation (CASL) comes into effect July 1, 2014. The anti-spam policies are among the strictest in the world. The federal government wants to crack down and be seen as tough on spam, spyware, fraud and invasion of privacy. It looks like they succeeded.

The government's expansive legislation has been criticized and many hope that enforcement agencies exercise good judgment early on that makes compliance less onerous than it seems. Enforcement will be jointly handled by two bodies: the Canadian Radio-Television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner. Senders that violate the law face large penalties. Fines will be up to $10 million for an organization and up to $1 million for an individual. The penalties are to be imposed per violation.


What does CASL cover?

Most businesses in Canada rely on electronic messaging of one kind or another to run their operations and grow. The law affects any individual or business sending any commercial electronic messages (CEM), which are text, sound, voice, or images sent electronically that encourage the recipient to participate in a commercial activity. The law applies to businesses sending a CEM to consumers (B2C) or to other businesses (B2B).

The following tips on how to prepare for CASL are not legal advice. We are not lawyers and have been asked about the legislation by our clients. If you want legal advice, please seek out a professional advice for a lawyer.

Understanding Consent: Determine if you have express or implied consent

The new legislation requires a business has received either express consent or implied consent from a recipient receiving a CEM.

Express Consent in simple terms means that the recipient has explicitly given permission to receive CEMs from your business. Consent may be obtained orally or in writing and must include the name of the person seeking consent, a mailing address and a telephone number or an email address. The sender must also provide information on how a recipient can unsubscribe.

Implied Consent means that the sender is able to demonstrate that they have an existing business or non-business relationship between the sender and the recipient that has been active in the last two years. Examples of implied consent are exchanging business cards and a person has not said they do not want to receive CEMs. Another case involves a person's email address published on a website. Implied consent applies unless they have stated on the same public website page that they do not want to receive CEMs.

How to Obtain Consent?

If in doubt, it is best to err on the side of caution and making the effort to obtain expressed consent. This could be in the form of a standard footer email inserted into all your business related CEMs. An example is from Manawa is below.

Example 1 -- Requesting Explicit Consent:

To maintain Manawa Network's communications with you, please click here

To unsubscribe from future communications with Manawa Networks, please click here.

Recipients that send your company an email to continue receiving emails (explicit consent), please keep and archive each opt-in message. In case of a dispute, you are required to prove you have consent. In the case of implied consent based on an existing business relationship (which must be active or within the last two years), have a record of the transaction in your notes.

For recipients who request to unsubscribe by email or phone, it is good practice to remove their email address from your company database within 10 days or sooner.

Example 2: Explicit Consent - Using an Email Marketing Service

A more efficient way to manage your opt-outs automatically is to use an email marketing software platform like MailChimp or Constant Contact. Both companies have information about CASL here and here. These companies automatically unsubscribe and delete emails from your company database. They notify the recipient by email that they have been unsubscribed.

In Closing:

The purpose of the new CASL legislation in Canada is to penalize companies that spam individuals and companies. Electronic spamming gives us all a bad name. If your company has an inbound marketing strategy to deliver high quality content, then prospective customers are more likely to be engaged and consent to receiving messages. Moreover, they are more likely to buy from you. Ultimately, the new legislation gives companies an opportunity to clean and build their contact database with people interested in doing business with you.