Canadian email laws are changing for Commercial Electronic Messages (CEM). As of July 1st, Canada’s Anti-Spam Legislation (commonly known as CASL) will officially come into effect. This legislation is designed to better protect Canadians while ensuring that business can continue. In essence it’s here to enforce strict consent in an effort to stop the unsolicited junk we get in our inboxes. Companies that don’t follow the new regulation can be fined up to $10 million.
How to determine if your message is a CEM
Your message will constitute as a CEM if it is communicated electronically and:
- Offers to purchase, sell, barter or lease a product, goods, service, land or an interest or right in land
- Offers to provide a business, investment or gaming opportunity
What You Need To Know about CASL
In Order to comply with CASL, you must follow the three main requirements when sending any CEM.
You must have expressed or implied consent to send a Commercial Electronic Message (CEM). Express consent can be obtained either digitally, in writing, or orally. In any case, the onus is on the person who is sending the message to prove they have obtained consent to send the message.
– The end-user must take a positive action to indicate consent. For example, this can be done by providing a blank box which a user can check off to indicate consent, not a pre-checked box. Some examples:
- Express consent verbally
- Via an email request
- A request in writing
Implied Consent can occur if;
- You are sending a CEM to recipients within your organization and the content concerns the activities of the organization.
- You are sending a CEM to recipients at another organization you have an existing relationship with and the content concerns the activities of that organization.
- You are sending a CEM to persons with whom you have a personal or family relationship with.
- Recipients choose to provide their email information to the sender without specifying that they choose not to receive CEMs.
NOTE: Implied consent becomes invalid after six months if the recipient doesn’t become a client, two years if an existing client is inactive from purchasing, subscribing, or having their account renewed.
TIP: Consider tracking and recording the following on how you obtained consent to make it easier should you ever have to prove consent.
- How it was obtained – in writing or orally
- When it was obtained
- Why it was obtained
- The manner in which it was obtained
You must clearly and simply identify yourself and anyone else on whose behalf the message is sent. This can be done in the message header, the message body, or by linking to a webpage readily accessible at no cost to the recipient. For example, here at Mindshape we use our company name and a company email address when sending any CEMs.
Example: From: Mindshape <firstname.lastname@example.org>
3. Unsubscribe Mechanism
In every message you send, you must provide a way for recipients to unsubscribe from receiving future messages. This is typically done through a direct link to an unsubscribe form which allows the recipient to remove themselves from one or all of your possible mailing lists. An alternate way is to instruct the user to reply to your message with “unsubscribe” or “stop”. If using a manual mechanism such as this, the key is to ensure you honor their opt-out.
So what’s the Difference?
- Businesses could send CEMs with either expressed or implied consent; so long as the content provided a valid unsubscribe mechanism that the recipient can use to be removed from future mailings.
- Businesses could collect subscribers through pre-checking an opt-in box and leaving it up to the user to uncheck the box should they not want the communications.
- Businesses could include email consent in their terms and conditions of use or sale.
- Businesses need express consent from recipients before sending CEMs; implied consent applies in limited circumstances.
- Recipients must indicate explicit consent by checking a box or typing an email address into a field (no pre-checked boxes).
- Express consent can’t be bundled into the general terms and conditions of use or sale.
TIP: If you have a mailing list and you are unsure if the recipients were collected following the above CASL rules, it is best that you send an email to them prior to July 1st requesting consent. Once CASL comes into force, you will not be able to do so as it will be considered a CEM.
The good news, if you have already been following the US Can-Spam rules you likely won’t have to change much, if any, of what you are doing now.
Here is a quick step-by-step guide*
*Adapted from Deloitte”s Managing the Message. http://www.deloitte.com/assets/Dcom-Canada/Local%20Assets/Documents/ERS/ca_en_ers_spr-CanadaAntiSpam_120712.pdf. December 2012