PLANT

CASL is coming…Are you prepared?

Make sure your business e-mail lists are completely opt-in by July 1, or risk paying fines of up to $10 million.


Expect your junk folder to be a little tidier come July 1.

Expect your junk folder to be a little tidier come July 1.

Remember Bill C-28? The contentious federal anti-spam legislation that was met with fierce lobbying from Canadian businesses and groups and spent a few years in limbo? Well, it’s back and Canada’s anti-spam legislation (CASL) will have a considerable impact on how businesses use e-mail and other electronic communications for marketing purposes.

By the way, it comes into effect July 1, (a move by the government that gave companies just six months to prepare for its implementation), which will undoubtedly send many scrambling.

CASL imposes some of the strictest anti-spam laws in the developed world, and Canada is the last of the G20 countries to do so. The Canadian Radio-Television and Telecommunications Commission (CRTC), the office of the privacy commissioner and the Competition Bureau will provide enforcement, and penalties will range from up to $1 million for individuals to $10 million for corporations.

And Martin Kratz, a partner at Calgary law firm Bennett Jones LLP, says Canadian businesses can expect aggressive enforcement.

“They’re going to try to make examples of people,” he says. “You have to make sure you’re satisfying the formalities under the act, and if you’re not, you can be liable. There’s not going to be any first or second strikes.”

RELATED:
CASL anti-spam law confusing for small business: CFIB

By 2017, the law will also allow individuals and organizations to bring a private right of action in court against the individuals and organization who they allege have violated the law, according to Industry Canada.

It applies to any commercial electronic message (CEM) sent by any medium, and it differs from laws in other countries, such as the US where anti-spam legislation has been around since 2003, because it requires consent. Now companies will have to make sure sendees have opted-in to receive messages instead of simply providing the person with an option to opt out, and it applies to personalized communications including “e-mail or SMS messages delivering any form of communication, such as text, images, voice or sounds, or technologies not yet available.”

It also includes Tweets.

Businesses that sell and promote products online and electronically will need to prove they have consent to reach out to new, existing and potential customers.

Come July 1, CASL (read the full literature at www.fightspam.gc.ca) will generally prohibit:

  • sending CEMs without the recipient’s consent, including messages to e-mail addresses, social networking accounts and cell phone text messages;
  • alteration of transmission data in an electronic message resulting in the message being delivered to a different destination without express consent; and
  • the use of misleading representations online in the promotion of products or services.

“The long and short of it is, all of your e-mail marketing lists must be (as they should be now) 100% opt-in, without exception,” says Andrew Shedden, an industrial marketing consultant at Peterborough, Ont.-based Broadfield Consulting.

Consent comes in two forms. Implied consent applies to existing business relationships, family and friends, but it expires after two years and you must be able to prove the deal and track its timing.

Express consent is a little more complicated.

As described by Bennett Jones, it can be obtained “either orally or in writing from a recipient…the CRTC has indicated that a person giving express consent must take some positive action to do so.” This would include checking a box that says they’re willing to receive electronic communications from your company. Messages must also provide an “unsubscribe” mechanism for future submissions.

To prepare yourself, Bennett Jones suggests the following compliance strategies:

  • Review existing communication practices internally and with external service providers.
  • Determine which entity in your organization should “own” the consents.
  • Assess each business or non-business relationship to ascertain if implied consent is available for CEMs to be sent.
  • Take steps necessary to collect express consents.
  • Identify communications where consents are not required by the information requirements and formalities are still required.
  • Ensure all records of compliance procedures and policies are maintained.

Once the law is in force, Shedden expects manufacturers to use more direct mail, place a heavier reliance on teleprospecting from inside business development reps, use more print and online advertising, and focus on inbound sales leads as a result of content marketing.

Are you ready?

Find even more tools to prepare your company for CASL from PLANT’s sister online-publication CanadianManufacturing.com.

This article appears in the May/June 2014 issue of PLANT.

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