Top 10 FAQ’s about CASL

With July 1st approaching, there is much buzz about CASL.  Why July 1st and what is CASL you ask?  Here are our Top 10 FAQ’s about CASL, garnered through reading  the legislation, media reports, and acquiring our own legal consultation – UPDATED July 27th.

Please note where recommendations are included, it is our marketing advice, not legal advice as we are not lawyers.

Q1.  What is CASL?

A1.   CASL is the acronym for Canada’s Anti Spam Legislation, whereby you must have either express consent or implied consent to send a commercial electronic message (CEM) to Canadians or through a Canadian internet service provider.  This law was passed in December of 2010 and is taking effect on July 1, 2014. ¹

Q2.  What is happening as of  July 1, 2014?

A2.   On July 1, 2014, certain portions of CASL will take effect.

1. You will need consent from any new contact and as well as your existing contacts to send CEM’s in Canada.
2. A transitional provision or grandfather clause of implied consent comes into effect to continue sending CEM’s to existing contacts, where there is an existing business or non-business relationship, that will enable you to continue sending Commercial Electronic Mail (CEM) to those segments of your database for the next three years.
3. Each CEM must include an ID and an unsubscribe mechanism.

Q3.  Does CASL apply to me?

A3.   If you are sending a commercial eletronic message where one of the purposes to encourage the recipient to participate in commercial activity, then CASL applies to you.  Your message is exempt if:

1. You have a Personal Relationship with the recipient.
2. You have a Family Relationship with the recipient.

Q4. CASL applies.  What must I do before July 1st?

A4.  We recommend the following…

1. Determine and label what segments of your databases which you have express, implied or questionable consent and ensure you have proof accordingly.
2. Upload any existing databases for which you have express or implied consent to ensure they are time stamped even if you have not contacted them as yet, so you can rely on the extended time provision of implied consent until July 1, 2017.
3. For those databases where consent is questionable, you will want to mail them a consent request before July 1st to obtain their express consent.

Q5.  What is express consent?

A5.   Express consent is received when you explicitly ask your contacts for permission and they agree or “opt-in”.  Express consent can be either oral or written and the onus is on the sender to prove consent.  Oral consent requires third party verification or an unedited audio recording.  Written consent can be paper based or electronic, as long as you store the date, time and manner of consent in a database.  Electronic check boxes cannot be autofilled.  Express consent never expires unless it is revoked.

Q6.  What is implied consent?

A6.  There are 4 categories of implied consent:

1. Existing Business Relationship  – if the sender of the CEM has within the 2 years prior to sending the CEM, bought, sold or leased a product or service from or to the recipient, or within 6 months prior to sending the CEM has made an inquiry of the sender of the CEM concerning the buying selling or leasing of a product or service.
2. Existing Non-Business Relationship – if the recipient of the CEM has within the 2 years prior to sending the CEM, donated to, volunteered with or held a membership in the sender of the CEM, and the sender is a charity, political party or candidate for political office.
3. Publication – if the email address of the recipient has been conspicuously published in a directory or similar media without a statement saying the recipient does not wish to receive unsolicited CEMs, and the content of the CEM is related to the business or official capacity of the recipient.
4. Business Card – if the recipient has given the sender of the CEM his or her email address and has not indicated to the sender that he or she does not wish to receive unsolicited CEMs and the content of the CEM is related to the business or official capacity of the recipient.

Q7.  How long is implied consent valid?

A7.   You cannot keep contacts for which you only have implied consent on your list forever.

1. For contacts acquired BEFORE July 1st, 2014, your grandfathered implied consent will expire on July 1st, 2017.
2. For contacts acquired AFTER July 1st, 2014, you can contact them for up to 2 years, unless they have only made an inquiry which is then six months.

It is a best practice to garner express consent to ensure ongoing communication.

Q8.  Do I have implied consent through an existing business relationship, where we have been regularly emailing our clients and they have accepted our communication by not opting out?

A8.  Unfortunately, no.  The “acceptance of a business….opportunity” would not include the acceptance of an email.  This subcategory of implied consent is meant to capture concept where recipients have accepted an offer by you to do business with them.  However, there may be other categories of implied consent available to you.  If consent is questionable,  you will want to send a consent request before July 1st to obtain their express consent or consult with a lawyer to determine if implied consent applies.

Q9.  What about databases received through a Third Party and Referrals?

A9.   All parties relying on consent obtained by others are accountable for managing that consent.  Required CEM elements still apply.  If you receive a referral, you may send one CEM to the prospective client, including the full name of the individual who made the referral.

Q10.  Are there exceptions where consent is not required to send an email?

A10.  In limited cases, you do not need express consent to send a CEM.  You do not need express consent to:

1. Provide a quote or estimate in response to a request.
2. Facilitate or complete a commercial transaction.
3. Provide warranty or recall information.
4. Provide notification or information about subscription, account, membership or loan.
5. Provide employment information.
6. Deliver goods or an upgrade under contract.

Bonus question…

Q11.  What do you need to do AFTER July 1st?

1.  You will need CONSENT, either implied or express, from any NEW contact, so please make sure you are obtaining consent, can prove it and adhere to CASL’s timelines for implied consent.
2. You should work on PROCURING EXPRESS CONSENT from both existing and new segments of your database for which you only have implied consent, because..
3. YOU CANNOT RELY ON IMPLIED CONSENT FOREVER.  On July 1, 2017, any and all segments of your database at it exists today for which you have only implied consent may no longer be mailed.  Then six months from July 1, and on a rolling schedule thereafter, you cannot rely on implied consent for new inquiries, and on July 1, 2016, the first of your new contacts through existing business relationships, read customers, starts to expire, unless they are still your customer or you have express consent.  Express Consent never expires!
4. COMMERCIAL ELECTRONIC MESSAGES (CEM’s) must include ID and an unsubscribe mechanism.  (most do already as a best practice, however it will be law on July 1st!)
5. Work toward an AUTOMATED PROCESS FOR LIST MANAGEMENT for all new contact acquisition in an effort to tame the CASL tiger!

Many email marketing service providers such as Mail Chimp, Constant Contact and Vertical Response have long required parts of CASL within their own requirements, only now it is legislation.   Many businesses have also been putting these best practices into place since 2010 and now CASL will ensure that ALL businesses do!

If you have any questions about these top 10 FAQ’s about CASL, what we are doing for our customers,  or would like us to review your current email marketing practices with you, it would be our pleasure.  We are happy to provide sound marketing advice and refer you for legal advice should it be warranted.  Please contact either Trisha Larsen at trisha@thewebadvisors.ca or Chris Elder at chris@thewebadvisors.ca to talk CASL today!

Resources:

1 – fightspam.gc.ca