CASL FAQ for Email Marketers
Last Updated: April, 2013
With an abundance of misinformation about CASL propagating the internet, Inbox Marketer wants to make sure you have the facts.
We have an internal task force working closely with the Canadian Marketing Association (CMA). Anything we make public about CASL is done so with the understanding that we are providing information that we know to be true. We will issue updates as new information becomes available. The information below does not represent a legal opinion.
Below are 10 of the most Frequently Asked Questions from email marketers that we are currently fielding about CASL:- What is CASL?
- When does this Bill go into effect?
- What types of messages does CASL cover?
- What is the impact on permission/consent?
- What is the impact on unsubscribe requirements?
- What information needs to be included within an email message?
- Do email marketers in Canada and the U.S. need to be compliant?
- Who will enforce CASL?
- What are the implications if I rent email lists?
- How do I ensure that I am prepared for CASL coming into force?
1. What is CASL?
CASL is Canada's Anti-Spam Legislation, previously known as Canada's Online Protection Legislation, or "FISA", which stands for "Fighting Internet and Wireless Spam Act." According to Industry Canada, the Bill is "intended to deter the most damaging and deceptive forms of spam, such as identity theft, phishing and spyware, from occurring in Canada and to help drive spammers out of Canada." The new act will "establish a regulatory framework to protect electronic commerce in Canada."
2. When does this Bill go into effect?
On March 7, 2012 the Canadian Radio-television and Telecommunications Commission (CRTC) published its final regulations, which provide details on the required contact information and unsubscribe mechanism to be included in each commercial electronic message and the requirements for valid consent. Details and industry commentary can be reviewed in this Financial Post Article. The second round of draft Industry Canada regulations were released for a 30-day comment period on January 4, 2013. The new expected date that CASL will be proclaimed into force is mid-2014.
3. What types of messages does CASL cover?
CASL creates a framework of rules and restrictions for sending commercial electronic messages. An "Electronic message", is described as "A message sent by any means of telecommunication, including a text, sound, voice or image message", however the rules will not apply to telemarketing conducted through two-way voice communication, fax or voice recordings sent to a telephone account.
The Bill also includes regulations restricting the installation of computer programs without consent, as well as specific language to cover such issues as spyware and "phishing" and prohibiting the collection of personal information via unlawful access.
These FAQ's focus on the implications of CASL for email marketers.
4. What is the impact on permission/consent?
Some email marketers have operated without obtaining prior consent to use an email address, and after having sent one electronic commercial message to an address, if the recipient did not unsubscribe, commercial emails continued to be sent. CASL requires marketers to obtain either implied or express consent to send commercial email messages, and they must be able to prove they have consent before sending commercial email. The Bill language states that Consent can be implied if:
- (a) there is an existing business relationship or an existing non-business relationship with the person to whom it is sent *Definitions appear below
- (b) the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person's business, role, functions or duties in a business or official capacity.
- (c) the person to whom the message is sent has disclosed, to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent, the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address, and the message is relevant to the person's business, role, functions or duties in a business or official capacity.
The Federal Government will be issuing detailed regulations and related materials to support implementation of the law, and these are expected to better describe acceptable methods of obtaining express consent. However, organizations following current best practices and guidelines can expect that their consents will be compliant with the new law.
- Inbox Marketer Best Practice: As always, Inbox Marketer recommends adopting rigorous list management and acquisition practices including a double-opt in approach to growing your database. Requiring the double opt-in permission assures "over and above" compliance with the consent requirement of CASL, and also will result in increased engagement metrics as your subscribers have taken that extra step and confirmed that they want your messages.
5. What is the impact on unsubscribe requirements?
An unsubscribe mechanism must be present and conspicuous, and must allow the recipient to indicate, "at no cost to them" that they no longer wish to receive email messages from the sender, either by clicking on a link which directs to a web page where the unsubscribe process can be completed, or by simply replying to the email with the direction to unsubscribe.
When a subscriber indicates that they do not wish to receive messages, the marketer must cease sending messages immediately or no later than 10 business days after the unsubscribe direction was sent.
Additionally, the recipient must be able to easily contact the sender, and this capability must be in place for 60 days from the date that the email was sent.
- Inbox Marketer Best Practice:
Keep the opt-out simple and conspicuous within the message. On the unsubscribe page where applicable, give the option to opt-out of individual communications or "all". Include a thank you page confirming unsubscribe and timing.
6. What information needs to be included within an email message?
Since the Bill's regulations haven't been finalized yet, the specifics aren't defined. But below are the high-level requirements from the Bill, along with Inbox Marketer's recommended best practices. This will get you thinking about what you may need to add to your email messages.
a) The message must include information that "clearly identifies the person who sent the message."
- Inbox Marketer Best Practice: Make sure to include your company name and contact information (including address and phone number) on your email message, as well as a link to a contact form on your web site.
- Inbox Marketer Best Practice: Make sure to include your company name and contact information (including address and phone number) on your email message, as well as a link to a contact form on your web site.
- Inbox Marketer Best Practice: Make sure it is simple for someone to unsubscribe from your eCommunications. Include both an electronic address and link to a page that allows a person to unsubscribe. Also, as above, make sure to include a phone number in case this functionality is not working properly. (Note: Refer to question 5 for more details regarding unsubscribe requirements.)
7. Do email marketers in Canada and the U.S. need to be compliant?
Yes. Based on our conversations with the Canadian Marketing Association (CMA), we've confirmed the Bill requires that senders outside of Canada, who send messages to Canadians, will need to comply with the legislation. The Bill also states that Canadians who send messages from Canada to other parts of the world will also need to comply. (Note: Official clarity around compliance will come once the regulations are finalized.)
8. Who will enforce CASL?
Enforcement of CASL will be a joint effort. Under Industry Canada's supervision, three government organizations will work together to enforce the Bill: The Canadian Radio-television and Telecommunications Commission will manage basic spam complaints; the Competition Bureau will handle fraud and misleading commercial messages; and the Office of the Privacy Commissioner will ensure email addresses are not collected without consent.
CASL also provides for a private right of action for businesses and consumers. This means anyone can pursue civil action against violators of the Bill.
Stiff penalties will also be enforced. Individuals can face a maximum fine of up to $1 million, while businesses can see monetary penalties of up to $10 million. These fines are imposed per violation and, in some cases, for each day the law is violated. That means, if a business violated the legislation for 10 days, it could potentially be required to pay up to $100 million. Company officers and directors can also be held personally liable if they or their employees violate the law.
9. What are the implications if I rent email lists?
The Bill won't stop marketers from renting lists. But, the email addresses must be collected and compiled according to the rules of consent (see question 4 above) and other principles that apply within federal and provincial privacy laws, such as the Personal Information Protection and Electronic Documents Act (PIPEDA).
- Inbox Marketer Best Practice: The most successful email program is based on an existing relationship, and delivers relevant communications that are aligned with recipient expectations. Building your own list of permission-based contacts is by far the preferred route to achieve optimal results for your email program.
10. How do I ensure that I am prepared for CASL coming into force?
Inbox Marketer can help you keep up with the latest news on the Bill and ensure you are prepared for when it is time to comply. Make sure you sign up to receive our eCommunications. We'll email you about any new developments and also keep this page updated for your reference.
Second, Inbox Marketer is offering a 1-Hour Informational Seminar which is delivered at our Toronto office (317 Adelaide Street West) or onsite at your organization. We will provide practical tips and answer any key questions regarding the upcoming legislation and the impact it will have on Digital Marketers.
And finally, if you are a legitimate email marketer and you are already complying with PIPEDA and CAN-SPAM, you don't need to worry. Of course, you will be expected to make some changes to comply with the Bill, although these should be minimal if you have been following email marketing best practices. But when the details of the new requirements are clear, you can contact us to help you through the process. We'll make it a lot easier for you to manage.
1CASL, Transitional Provision 66
Definitions:
Existing Business Relationship
(10) In subsection (9), "existing business relationship" means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from
(a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons;
(b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;
(c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;
(d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or
(e) an inquiry or application, within the six-month period immediately before the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).
Existing Non-Business Relationship
13) In subsection (9), "existing non-business relationship" means a non-business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from
(a) a donation or gift made by the person to whom the message is sent to any of those other persons within the two-year period immediately before the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization, or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office;
(b) volunteer work performed by the person to whom the message is sent for any of those other persons, or attendance at a meeting organized by that other person, within the two-year period immediately before the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office; or
(c) membership, as defined in the regulations, by the person to whom the message is sent, in any of those other persons, within the two-year period immediately before the day on which the message was sent, where that other person is a club, association or voluntary organization, as defined in the regulations.
