You've probably heard that the Canadian Anti-Spam Law (CASL) went into effect July 1, 2014. If you're in Canada or send to Canadian residents, you need to comply with CASL. Luckily, there's a transition period, until July 1, 2017, during which you can take steps to ensure your list stays in compliance under the law.
This article is provided as a resource, but does not constitute legal advice. If you have more questions about CASL, we encourage you to contact an attorney in your area who is familiar with this issue.
There are new consequences for spammers, including fines of $1-10M per violation. It's important to note that individuals and companies, including directors, officers and other agents, are responsible and liable for the messages they send.
During the transitional period, the Canadian Radio-Television and Telecommunications Commission (CRTC), the Competition Bureau, and the Office of the Privacy Commissioner of Canada, may investigate and litigate against entities who don't adhere to CASL. After July 1, 2017, any individual will also be able to sue any entity they believe is sending spam messages.
What's covered under CASL
CASL regulations apply to any "Commercial Electronic Message" (CEM) sent from or to Canadian computers and devices in Canada. Messages routed through Canadian computer systems are not subject to this law.
A CEM is any message that:
- is in an electronic format, including emails, instant messages, text messages, and some social media communications;
- is sent to an electronic address, including email addresses, instant message accounts, phone accounts, and social media accounts; and
- contains a message encouraging recipients to take part in some type of commercial activity, including the promotion of products, services, people/personas, companies, or organizations.
Fax messages and fax numbers aren't considered electronic formats or addresses under CASL.
- Messages to family or a person with established personal relationship.
- Messages to an employee, consultant, or person associated with your business.
- Responses to a current customer, or someone who has inquired in the last six months.
- Messages that will be opened or accessed in a foreign country, including the U.S., China, and most of Europe.
- Messages sent on behalf of a charity or political organization for the purposes of raising funds or soliciting contributions.
- Messages attempting to enforce a legal right or court order.
- Messages that provide warranty, recall, safety, or security information about a product or service purchased by the recipient.
- Messages that provide information about a purchase, subscription, membership, account, loan, or other ongoing relationship, including delivery of product updates or upgrades.
- A single message to a recipient without an existing relationship on the basis of a referral. The full name of the referring person must be disclosed in the message. The referrer may be family or have another relationship with the person to whom you're sending.
If your message does not meet one of these criteria, consent is required under CASL.
Implied vs. Express Consent
The law defines two types of consent: implied and express. Implied consent is a looser interpretation, whereas express consent requires action from both sender and recipient.
Implied consent includes when:
- A recipient has purchased a product, service or made another business deal, contract, or membership with your organization in the last 24 months;
- You are a registered charity or political organization, and the recipient has made a donation or gift, has volunteered, or attended a meeting organized by you; or
- A professional message is sent to someone whose email address was given to you, or is conspicuously published, and who hasn't published or told you that they don't want unsolicited messages.
If your recipients don't meet any of the above criteria, then express consent is required before you can send campaigns to them.
Express consent means written or oral agreement to receive specific types of messages, for example "You want to receive monthly newsletters and weekly discount notifications from Company B."
Express consent is only valid if the following information is included with your request for consent:
- A clear and concise description of your purpose in obtaining consent
- A description of messages you'll be sending
- Requestor's name and contact information (physical mailing address and telephone number, email address, or website URL)
- A statement that the recipient may unsubscribe at any time.
The requestor can be you or someone for whom you're asking. If you're requesting consent on behalf of a client, the client's name and contact information must be included with the consent request.
During the transition period, July 1, 2014-July 1, 2017, you may continue to send messages to recipients from whom you have implied consent, unless they unsubscribe. After the 2017 cut-off date, you may only send to recipients with express consent or whose implied consent is currently valid under CASL—that is, 24 months after a purchase or six months after an inquiry.
Sticking to MailChimp's policies is not only required, it also helps improve your campaign deliverability and subscriber engagement. Here are some of MailChimp's Terms that differ from CASL.
- Customers must have made a purchase within the last 12 months. Inquiries without a purchase don't count as permission.
- Family members and friends still need to provide written permission.
- Nonprofit organizations, political groups, and courts still need to secure written permission from recipients.
- Referrals and published email addresses are considered third-party, and therefore, not allowed.
- Oral agreement to receive messages does not qualify as permission.
In addition to understanding what qualifies as CASL-regulated message, and what type of consent is needed, there are a few other details to keep in mind.
- You must retain a record of consent confirmations.
- When requesting consent, checkboxes cannot be pre-filled to suggest consent. Each subscriber must check the box themselves for consent to be valid.
- All messages sent must include your name, the person on whose behalf you are sending (if any), your physical mailing address and your telephone number, email address, or website URL.
- All messages sent after consent must also include an unsubscribe mechanism, and unsubscribes must be processed within 10 days.
Here's the full text of the law, if you're into that sort of thing. The Canadian Radio-Television and Telecommunications Commission's also set up an FAQ page and some guidelines for obtaining consent. If you have additional questions, we encourage you to contact an attorney in your area who is familiar with the law.