One of the many tools businesses and non-profits use for reaching out and remaining in contact with current and prospective customers is electronic messages.
In the business and marketing world, this type of correspondence is referred to as a “Commercial Electronic Message” (CEM), which includes emails, text messages, instant messaging (IM), and social media communications.
When a CEM has been sent to a recipient from a business without the recipient’s consent, this is referred to as SPAM. Due to the misuse of commercial electronic messages, the Canadian federal government passed the Canadian Anti-Spam Legislation (CASL). This legislation took full effect on July 1st, 2014 and the penalties for failure to comply with this legislation include a fine of $1-10 million per violation and/or imprisonment for up to 5 years.
The Canadian Anti-Spam Legislation (CASL) affects ANY “Commercial Electronic Message” (CEM) sent from or to a computer or device located in Canada, sent by phone account, email addresses, IM accounts, or social media accounts.
In addition to obtaining recipient consent, the CASL legislation requires that the sender of all CEM’s:
- Obtain permission before they are allowed to send to the email recipient;
- Provide truthful header/subject as it relates to the body of the message and are not misleading;
- Provides proper identification as to who is sending the message, along with the proper contact information, and time limit; and
- Who conduct business in Canada must comply with these laws.
It is also important to note that this legislation includes a private right of action clause for Internet Service Providers (ISP’s) to sue a company or sender regarding the receipt of prohibited messages. This private right of action clause does not extend to individuals. In addition individuals and companies, including directors, agents, officers and anyone representing the company are liable and responsible for the messages they send.
Within the CASL legislation there are two types of allowable consent required for messages that encourage recipient participation in any type of commercial activity, such as promotions of a person, product, service, organization, or company.
When collecting electronic contact information, such as email, texting, IM, or social media contact details, the Canadian Anti-Spam Legislation (CASL) states that the two different types of permission required are expressed or implied consent.
With expressed consent, prior to contacting a potential customer, the company must ask for permission to contact the recipient electronically. An example of this would be a prospective customer subscribing to a newsletter subscription form to receive a monthly newsletter. Expressed consent is only valid if the following information is included with the company’s request for consent:
- clearly outlines what the consent is obtained for (for example, receiving future promotional materials),
- is a detailed, non-misleading description of messages the company will be sending,
- includes the company’s name and contact information (for example the company’s name, mailing address, telephone number, email address, or website URL), and
- offers recipients the choice to unsubscribe at any time in every message.
Implied consent applies where a recent previous relationship exists but the conditions of expressed consent have not been met, such as:
- a business relationship exists due to the recipient’s:
- purchase from the business owner within the last 2 years,
- involvement in an investment or gaming opportunity with the business owner within the last 2 years, and
- written or electronic contract with the business within the last 2 years.
- a non-business relationship exists where the recipient has:
- made a gift to a registered charity, donation, or political organization within the last 2 years,
- volunteered with a political organization or charity, and
- been a member of an organization’s club, association, or not-for-profit volunteer association.
It is important to note that implied consent expires within 2 years; therefore, permission must be converted into expressed consent to continue contacting the customer electronically. In addition, for email addresses gathered before July 1, 2014, implied consent expires three years after the law goes into effect (which is July 1, 2017). For email addresses gathered after July 1, 2014, implied consent expires two years after they were initially collected. This applies only if the recipient does not interact with company again, such as the purchase something new or renew their subscription, loan, account, or contract.
The Canadian Anti-Spam Legislation (CASL) has very specific expectations regarding commercial electronic messages, which are:
- The company must retain a record of consent confirmation for all recipients. It is crucial to retain this information. If challenged by regulators (or Canadian courts), the burden of proof for consent is on the sender, not the recipient.
- When requesting consent, each subscriber must check the box himself or herself for consent to be valid (Note: the checkboxes cannot be pre-filled to suggest consent).
- All corporate electronic messages sent by a business to recipients in Canada must include the company name, the person on whose behalf the company is sending correspondence for (if any), as well as the company’s physical mailing address, phone number, email address, or website URL.
- All messages sent from a company to the recipient in Canada must also include the option to unsubscribe within each message. All removal requests must be completed within 10 days.
- As for the content, it is very important to be clear on the intent of the message. Make sure that your electronic message (i.e.: to email, text, IM and social media) is not ambiguous or misleading and that the “Subject” line is straightforward. Enticing the recipient under false pretences goes against the CASL law.
- Electronic contact details (i.e.: email, text, IM, or social media) obtained with implied consent must be removed after 2 years unless explicit consent from the recipient has been received.
It is important to note that unsubscribe requests never expire and the company must comply with all opt-out requests indefinitely. The only exception to this is if the company receives a new expressed consent request for that specific company feature and address by the recipient.
The following electronic messages are exempt from CASL:
- Personal in Nature – messages sent by family members or a person with established personal relationship (such as boyfriend /girlfriend or close friend). It is highly recommended that companies discourage employees from using their company’s electronic messaging services for personal use (such as email, texting, IM, or social media).
- Inter-business Electronic Correspondence – messages associated with the business to an employee, consultant, or person associated with the business.
- B2C Inquiry – messages responding to someone who has inquired in the last six-months or is a current customer.
- International Electronic Messages – messages that will be opened or accessed outside of Canada, in a foreign country, including the U.S., China, and most of Europe.
- Political Organization or Charitable Electronic Messages – messages sent for the purposes of raising funds or soliciting contributions on behalf of a political organization or charity.
- Court Order / Legal Rights – messages attempting to enforce a court order or legal rights.
- Product or Service Follow-up Electronic Messages – messages that provide information regarding warranty, safety, recall, or security information about a product or service purchased by the recipient.
- Business Related Ongoing Relationship – messages that provide information about a purchase, membership, subscription, account, loan, or other ongoing relationship with the company, which also includes the delivery of product, upgrades, or updates.
- B2B and B2C Referral – a single message may be sent based on a referral, without an existing relationship. This one time message must include the full name of the referring person in the message. The person referring the company can be a family member or have another relationship with the person to whom you are sending.
If the company’s electronic message does not meet one of the above-mentioned criteria, under CASL legislation, consent is required.
Please note some email services may have a much more strictly enforced Terms of Service (TOS). We recommend you read their TOS prior to sending messages.
For assistance with strategizing and executing an effective Email Marketing Campaign that follows CASL compliance guidelines, contact CSP Solutions today.
LEGAL DISCLAIMER: The purpose of this article is to help explain to business owners how the new Canadian Anti-Spam Legislation (CASL) impacts Canadian electronic correspondence and Internet Marketing, and the ramification for failing to comply with this federal law. For specific legal advice or questions, please contact an attorney.