Is Canada's CASL overdone?

Category: Canada
Tags: Canadian , CASL , Privacy

Oh, Canada! Five Ways to Deal With the Canadian Anti-Spam Law

On July 1 the Canadian Anti-Spam Law, or CASL (pronounced “castle”), takes effect. That nation's government plans a three-year phase-in for companies to adjust to the regulations that aim to rid inboxes of unwanted CEMS (commercial electronic messages), but one Canadian email expert advises U.S. marketers to get with the new program right away or face potentially serious consequences.


“This law will have a tremendous effect on marketers, not just in Canada, but in America and around the world. Most U.S. companies do business in Canada, and this law rocks the landscape of anyone marketing to Canadians,” says Robert Burko, president of Toronto-based Elite Email, which produced a “CASL Survival Guide” for its clients.

Organizations that fail to comply with CASL can face criminal as well as civil charges, with penalties as high as $10 million and personal liability for company officers and directors.

Summing up key provision of the new law:

A CEM is defined as any electronic message that encourages participation in a commercial activity, and can be an email or a text. CASL requires that consent must be obtained from consumers before companies can send them CEMs. This can be “express” consent—obtained in person or in writing—or “implied” consent, such as the existence of an ongoing business relationship. In either case, free opt-out mechanisms must be provided by senders or their third-party partners. “From” lines must plainly state the name of the organization sending the message.

“The crux of the law is that people should get only the emails they want, and if you want to email someone, you have to have permission,” says Burko, who offers these tips to U.S.-based emailers:

Advice on consent. Understand the difference between implied and express consent. If people made a purchase from you within the preceding two years, companies can send messages under the implied consent rule. To gain express consent, you must have an affirmative action from a customer—such as checking a box online or filling out a form. (Warning: Prechecked boxes that consumers must uncheck are no longer allowed.) “But companies should strive to get express consent, because it doesn't expire,” Burko says. “In the long run it's better to strive for express consent than to keep track of all those two-year expires.”

Stake out the territory. To stay safe, dig into your database and pull out all the people you send emails to in Canada. Be sure not to limit your search to addresses with “.ca” domains. Use geo-search to identify the addresses inside the country. “Send them emails saying, ‘We value your relationship so please click here to confirm that you want to continue receiving our emails,'” Burko advises. “It's a great way to get express consent from your current Canadian customers.”

Get third parties on board. Outside marketing agencies sending emails that trade on a relationship with you must also get consent and must make clear whom their relationship is with. “I strongly advise against using third-party lists when it comes to Canadians,” Burko says. “It's just going to cause problems.”

Map all points of entry. Small retailers may have only one sign-up point. Large enterprises may have several in addition to emails and websites, such as call centers, trade shows, and checkout counters. Companies need to ensure that every point of entry for opt-in is compliant with CASL.

Content is all about clarity. No major creative changes need to be enforced in the emails you send to Canadians, they just need to be easily understood. Make plain who sent the email and in defining any opt-ins. “The law is not attempting to trick anyone,” Burko says. “It's just trying to eliminate the sneakiness.” That's something, he adds, that just might serve to bolster emailers' relationships with their stateside customers, as well.

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