It’s been nearly two years since Canada’s Anti-Spam Law (CASL) came into effect and in that time marketers both in Canada and abroad have had to adapt their messaging programs to meet the legislations’ stringent requirements. If you thought your CASL related headaches were over, I’m sorry to report that they’re not, there are still more changes to come.
CASL’s regulations are implemented in phases. Phases 1 and 2 dealt with obtaining proper consent and protecting Canadians against the installation of unwanted software on their electronic devices. The next phase deals with the expiry of implied consent subscribers and the private right of action. For marketers already in compliance these changes may not require much (if any) work on your part but, we do recommend completing a thorough CASL audit that reviews your organization for gaps where you may be vulnerable for fines.
Two Important Upcoming Dates:
- July 1, 2016 – The first of the implied consent subscribers begin to expire.
If you deploy to some implied consent recipients, you need to be prepared for July 1, 2016. This is the first hurdle – when the first of the post-CASL implieds two-year consent begin to expire. Under CASL, implied consent only lasts for 24 months. So if a former Canadian customer or email subscriber hasn’t renewed or opted-in to your email list in more than two years, you need to get express consent from them to continue sending Commercial Electronic Messages (CEMs). Because the law went into effect on July 1, 2014, you have until July 1, 2016 for all of your Canadian contacts with current implied consent to grant you explicit permission to message them. Or, they must have created a new business relationship with you anytime during the three year transition period, from July 1, 2014 to July 1, 2017.
***Note: between now and July 1, 2016, you still can’t email someone if you don’t have an existing business relationship or existing implied consent—even if you send an email asking them to opt-in now, it is still considered a CEM.
- July 1, 2017 – The end of the transition period where two things will happen:
- Three year implied consents for records that qualified to remain active under Section 66* will expire.
* Under section 66, a person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force.
- Beginning on July 1, 2017, the law will also allow individuals and organizations who are affected by an act or omission that is in contravention of the law to bring a private right of action in court against individuals and organizations whom they allege have violated the law. Once into force, the private right of action will allow an applicant to seek actual and statutory damages. Statutory damages may not be pursued if the person or organization against whom the contravention is alleged has entered into an undertaking or has been served with a Notice of Violation.
***Before filing a lawsuit against an individual or organization, get legal advice. An individual or organization could be responsible for paying considerable legal fees incurred by the alleged violator if they file an improper claim or one that is not considered to have merit.
What Should You Be Doing Now to Prepare for Tomorrow?
CASL compliance requires constant management and diligence to ensure programs and processes are up to date and compliant. We suggest the following to ensure ongoing compliance:
- Conduct an Annual CASL Audit that reviews your organization for gaps where you may be vulnerable for fines.
- Ongoing compliance monitoring, to ensure that you have implemented requirements consistently and accurately over time.
If you keep proper records and have processes in place to prove due diligence, you should not have much to worry about. Always remember – CASL is meant as a deterrent to bad behaviour, not as a punishment for good marketers.
Looking for Additional CASL Resources
Download the first two parts of our four part mini-series on CASL’s 2 year anniversary. Learn more about the CASL (Canada’s Anti-Spam Legislation) regulations and the effect they’re having on the email marketing industry and your email programs.
Part 1 – CASL: Two Years Later
Part 2 – CASL: What’s Next?