Disclaimer: The information in this blog should not be regarded as formal legal advice. Please seek official legal counsel for any specific questions.
For Canadians, July 1st is a big day. Today, nearly 150 years ago, three colonies in North America conjoined to officially form what is now Canada. Today, on this particular Canada Day, however, our neighbors to the north are introducing a whole new set of rules for marketers collectively known as Canadian Anti-Spam Legislation (CASL).
CASL is a new set of laws and regulations that clearly define what types of commercial messages can and cannot be sent to individuals. While this new set of laws will not change the face of email remarketing as we know it, it certainly calls for some significant adjustments.
We first covered the upcoming Canadian Anti-Spam law back in April, along with other international email regulations. With CASL going into effect today, we figured it was a good idea to reiterate the basics of CASL again. Here’s a quick overview of CASL Basics to help you stay away from hefty penalties.
Consent Under CASL
Under CASL, there are two types of consent: implied and express.
- Express Consent
For most commercial electronic messages (CEMs), the sender must first obtain express consent from the recipient. Giving express consent must be a deliberate, conscious act. This means that the use of pre-marked boxes and other similar tactics are not sufficient for obtaining consent. UpSellit has developed an innovative method of collecting express consent without driving down conversions. Contact a representative to learn more.
- Implied Consent
Implied consent is consent that can be reasonably assumed from the actions a consumer has taken. For example, implied consent is given at the end of a purchase for purely transactional messages and warranty information. Implied consent lasts for 6 to 24 months, depending on the type of CEM, and, as a rule of thumb, should not be depended on for email marketing. See our list of exceptions below for a few examples of implied consent
Email ReMarketing Under CASL
CASL covers any type of commercial electronic messaging (CEM). Email, text messages, instant messaging, phone calls, and social media messages dispatched to electronic addresses of Canadian consumers are all considered CEMs and are covered by CASL.
Exceptions to the Legislation
There are some exceptions to the strict rules as outlined by CASL. These include, but aren’t limited to:
- Messages sent to employees, partners, consultants, or anyone else directly associated with your business.
- Messages for which it can be reasonably assumed that they will not be opened in Canada (Email addresses with a .ru, .de, or other country-based domain registry, for example.)
- Messages containing receipts or confirmations directly after a purchase. These transactions initiate implied consent that lasts for 6 months.
- Messages sent on behalf of charities or political parties attempting to solicit donations.
- Messages containing warranty, safety, or security information.
- Messages that are the result of an in-person meeting. Consent can be given electronically or orally, however, the sender must still maintain proof of consent. Holding on to business cards might be a safe bet.
Referral emails can be sent under CASL, but they must be limited to 1 message before further consent is obtained. Referred messages must contain the full name of the referrer.
Identification and Unsubscribing
Each message must clearly and properly identify the sender. Just as under CAN-SPAM, there is no exception to this rule. Additionally, each message must contain a link to a working, honored unsubscribe mechanism. Once again, there is no exception to this rule.
Violations of CASL are met with harsh financial penalties. Businesses face fines of up to 10,000,000 CAD per violation, while individuals face fines up to 1,000,000 CAD.
Under CASL, the burden of proof lies with the sender in every case. It is up to the sending individual or business to provide proof of consent to avoid penalty.
As of today, all emails opened within Canada must comply with these rules. If your business maintains a sizable customer base in Canada and is currently transitioning, don’t grind to a halt out of fear–there is a 3 year grace period for businesses to reaffirm consent and comply with these rules among existing subscribers. Over the next three years, each list member must reaffirm consent or be removed from lists. That being said, the sooner you obtain express consent from all subscribers, the better.
To learn more about Canada’s Anti-Spam Legislation, visit the official site.
For more information on email remarketing and website abandonment, contact an expert at UpSellit.
Written by Bryan Gudmundson