At the 2014 emfluence Marketing Platform User Conference, Kristin Kenney with Polsinelli gave us some straight talk about what marketers need to know about Canada's new Anti-Spam Legislation (CASL). Here are the 5 things you should know right now about Canada's Anti-Spam Leglislation:

#1. CASL applies to more than just email. Unlike the U.S. laws, CASL applies to most forms of electronic messaging, like instant messages, SMS/text messages, direct messages via social media, and similar messages in addition to email. This means you need to figure out whether CASL applies before launching a social media marketing campaign.

#2. Express consent — explicit permission — will be more than best practice: it's now required under CASL. Starting in July 2014, marketers must have proof of a subscriber’s affirmative written consent that provides a record of the subscriber’s request for promotional emails or other messages. Website forms must be clearly labeled and boxes to "also sign up for email" during checkout must be checked by the recipient – in other words, leave the box unchecked! Your sign up form should clearly communicate who you are (and, if you’re sending on behalf of a client, who your client is), your (or your client’s) contact information, and what exactly the recipient will receive when they sign up. Sound familiar? This is already best practice, but now for Canada, it's law. The good news? When you obtain express consent from subscribers, it doesn’t expire unless they opt-out.

Like in the U.S., transactional emails or messages to contacts with a business relationship within the last 2 years won't have to prove this (they have "implied consent" for 2 years), but any bulk-sent marketing email will. For most email marketers, this means sending out a campaign to confirm/request explicit permission from their Canadian readers. (Need guidance? Read Sara's post on how to conduct a permission campaign.)

Here's a great example from the Kansas City Business Journal. They've added permission copy to their regularly scheduled content/campaigns. The button links to a pre-filled form and just asks the reader to confirm that they want to receive email. Two easy clicks confirm consent from your reader.

#3. CASL applies to all email sent to any recipients in Canada. This one is the rub for a lot of email marketers. CASL doesn't just apply to email senders from Canada. It applies to any recipients of your email that live in Canada or might open your email while staying in Canada or if it ever touches a system located in Canada. (Seriously.) However, if you (or your client) don’t have any reasonable basis to know the message would be received or accessed in Canada, CASL probably doesn’t apply to you.

#4. Engagement doesn't not count as explicit permission. A smart question from the User Conference was "If we can show that a subscriber has opened, clicked or engaged in other ways with our email marketing campaigns, does that constitute a relationship or permission under CASL?" Unfortunately, Kristin clarified that it almost definitely doesn't. Explicit permission means the user took an action, knowingly, actively, to get onto your list. Remember, you need a written record of express consent!

#5. Individuals can take action against you, not just the government or companies. Unlike the CAN-SPAM laws in the U.S., in 2017, CASL will allow regular people to enforce their rights to spam-free inboxes – in addition to the hefty administrative penalties for violation (up to $10M).

There is good news… Personal relationships and ongoing Business-to-Business relationships are exempt. Plus, responses to requests for information are exempt. So, if someone wants more information and requests it through a form on your website, sending a response to them is compliant (as long as your email complies with the content requirements of unsubscribe mechanism, etc.). Warning: automatically adding that person to an ongoing email marketing list probably isn't compliant.

Even better news: you have some time to ramp up. CASL takes effect July 1, 2014, but the right of private action won't take effect until July 1, 2017. CASL also allows for 24 months of implied consent (via previous business relationships), so it's likely you won't be taken out by the Canadian government until at least July 1, 2016.

Bottom line: Try to play by the rules and you'll likely be ok, but we don't have any precedent to prove that yet.

Major thanks to Kristin for her insight and answering unending questions on an ever-changing topic!


UPDATE: Examples from pals in the industry. The first one from Tourism Winnipeg was spotted by Sarah Eggers. This is an entire dedicated email asking to confirm consent, with a big red button.

Also, Susannah Sulsar pointed out Dairy Queen's new email sign-up form: very explicit in how they ask for consent and reference the law! Below that is their permission email creative, created by Barkley, asking current subscribers to confirm.


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