Canada’s Anti-Spam Law – What It Is and What to Do If You Haven’t Acted Yet

by

Can-Spam.

It sounds like luncheon meat in a tin, but it’s actually the law.

The new Canadian anti-spam law or (CASL) went into effect on July 1, and it’s a whole lot stricter than comparable U.S. anti-spam laws.

The new Canadian laws, which come with a three-year “transition period” clause to give everyone enough time to become completely compliant, are closely modeled after anti-spam laws in the European Union member states.

If you send e-mails to Canadians, or if you live there, you’ll need to be CASL compliant as soon as possible. Here’s what you can expect.

Which E-mails Are Covered By Canada’s Anti-Spam Law?

The new Canadian anti-spam law applies to all Commercial Electronic Messages (CEMs) sent from Canadian devices and all CEMs sent to Canadian devices. The law defines a CEM as any electronic message sent to email addresses, instant messaging accounts, phone accounts or social media accounts. CEMs contain commercial messages, product promotion, or advertising related to companies or organizations.

However, you don’t have to worry if you’re sending messages with the following content:

  • Personal messages from family and friends
  • Messages to your employees or associates of your business
  • Messages that respond to a current customer’s recent inquiry (within the past six months)
  • International messages that will be opened in a foreign country
  • Fund-raising messages sent by charities and political organizations
  • Legal notices and court orders
  • Messages that contain information related to a recipient’s recent purchase, such as warranty information, recall notices, and safety warnings
  • Payment reminders, subscription notices, and delivery status updates
  • One single message to a recipient who was referred by a third party – that party must be mentioned in the message
  • Fax messages to fax numbers, which are exempt under CASL regulations

If your content does not fit into one of the above categories, you will need consent before you can send it.

Implied Consent

Under the new Canadian anti-spam law, implied consent examples include recipients who have had business dealings with your organization or company in the past two years. This would cover purchases, contracts, or memberships sponsored by your company.

You also have implied consent if you are a non-profit organization or charity who the recipient has previously donated to, volunteered for, or attended a meeting.

Also implied is the consent of anyone whose email address is widely published and who has not stated that they don’t want unsolicited messages.

Messages that don’t adhere to these criteria require you to get the recipient’s express consent before you can send them any messages.

Express Consent

Express consent is written or oral permission to send messages of a specified nature such as, “Please sign me up for your newsletters.” But your request for consent must include the following four points:

  1. Clearly stated reason for seeking consent
  2. Description of the types of messages you’ll be sending
  3. YOUR name, physical mailing address, phone number, and e-mail address
  4. An option to opt-out or unsubscribe at any time

Remember that the recipient has to opt-in manually, so you can’t force their hand by using pre-checked boxes; they must check the opt-in box by themselves. This screen must also explain why you want their consent.

Before You Hit The “Send” Button…

The Canadian Government has thoughtfully assembled a list of three questions you should ask yourself before you hit the send button.

1. Think About Who You Are Sending Messages To

Did they give consent? Do you have a record of this consent?

  • Did they say ‘yes, please contact me’?
  • Did they publish contact info online or did they give you a business card? (Look closely for any ‘don’t contact’ instructions)
  • This means no automated address generation or collecting!

Do you have an existing business or non-business relationship?

  • Customers, clients, associates, donors, supporters, volunteers, or members from the past two years

2. Think About the Type of Messages You’re Sending

  • Is it sent to an electronic address?
  • E.g., email, SMS, instant messaging or similar platforms
  • Is it commercial or promotional?
  • Commercial or promotional information including marketing, sales, offers, solicitations, or similar activities
  • Ensure that no part of the message is false or misleading.

3. Think About What You Must Include

  • Identify your name and business, the name of anyone else on whose behalf you are sending the message, and a current mailing address. Also include a phone number, email address, or web address. Ensure they are accurate and valid for a minimum of 60 days after sending the message.
  • Include details on how to unsubscribe in each message and action every unsubscribe request within 10 days or less and at no cost to the recipient.

Penalties For Violating Canada’s Anti-Spam Law Regulations

Here’s the really bad news: the Canadian anti-spam law penalties for non-compliance are brutal. If your company commits any violations of the anti-spam legislation, you are liable to be required to pay an “administrative monetary penalty” of up to 10 million dollars. Individual offenders face fines up to a million dollars for non-compliance.

Get Professional Advice

If your business does B2B marketing or content marketing, you’ll need to study the CASL guidelines carefully. There are many steps to be taken to reach CASL compliance, and while you may have some grace period, you need to get started now.

We encourage you to have your communications reviewed by someone who is familiar with the anti-spam law in order to make sure you compliant and following the letter of the law.

In case you’re a legal eagle yourself, we refer you to the full text of the law, and the Canadian Radio-Television and Telecommunications Commission (CRTTC) has also set up a web page with guidelines and frequently asked questions.

Questions?  Drop me an email at bstoltz@ariadpartners.com.