It’s hard to believe it’s already been 3 years since Canada’s Anti-Spam Legislation (CASL) took effect. July 1st mark’s CASL’s 3 year birthday and there are some important changes you need to know about.
One of the biggest and scariest changes has been suspended by the Government of Canada. On July 1st, 2017, the law was going to change to allow private right of action, meaning Individuals, businesses, and organizations who receive a CEM that is not compliant with CASL requirements could take you court themselves without going through the CRTC. This sounded a bit scary and fortunately, this provision has been cancelled; however, the CRTC has issued some large fines in the last 3 years. If you aren’t complying with the law, you can still get fined.
In the past and going forward, if the CRTC found a company in violation of the law, they issued warnings & penalties that were based on the nature of the violation, the company’s history with CASL, whether the company benefited from the violation, and their ability to pay. The three most notable fines were all due to either the unsubscribe not working or readily available, and not honoring the unsubscribe requests.
As far as email marketing best practices go, not honoring an unsubscribe request is pretty much the worst thing you can do. If someone says they don’t want your email, stop sending them email. If you don’t they will mark your email as spam. It doesn’t take that many spam complaints before gmail, yahoo, hotmail etc. start sending all your email - everyone on your list - to the spam folder instead of the inbox. I rarely check my spam folder . . . you don’t want your email to go into the spam folder.
There still is a change that you need to be aware of and this has to do with consent. Now is a great time for a quick refresh on what CASL is and means for you.
CASL came into effect July 1, 2014. As per the government website, It is in place to protect Canadians while ensuring that businesses can continue to compete in the global marketplace. Canada was a hotbed of spammers and it was time for some regulation. Many people thought the laws would destroy their business, but it didn’t. Turned out it was pretty reasonable and still is, even with the new changes.
Please note: CASL only applies to Commercial Electronic Messages (CEMs). It does not apply to transactional messages.
Transactional messages are:
- account statuses,
- and emails regarding class, activity, membership, and product status.
- promotional messages,
- and pre-registration and registration announcementss.
There are three general requirements for sending these types of messages:
- You need consent.
- Email must include Identification information: name, address, phone number, email.
- An obvious and functioning unsubscribe mechanism.
Number 2 and 3 are your footer. Nothing has changed with those requirements but take note that in order to be in compliance with the law, these two are very important. Major fines to date are due to unsubscribes not working or missing entirely.
Consent is equally important which leads us to...
The Change - Consent
Consent is trickiest part of this law. There are 2 types of consent, express consent and implied consent.
Implied consent means you having an existing business or non-business relationship with the recipient. A business relationship means, the recipient has made a purchase from you in the past, or made an inquiry, or used your product or service in the last 6 months - this includes free products or services. A non-business relationship means they have made a gift or donation, have volunteered, or have had a membership.
2 years - If someone gives implied consent as defined above, you can send them CEMs for 2 years (24 months) - unless they unsubscribe. After 2 years, their implied consent expires and you have to stop emailing them.
Here’s the change: when CASL came into effect back in 2014 there was a 3 year grace period where you could continue to email people who had given you implied consent (prior to the CASL coming into effect) and did not unsubscribe. As of July 1st, this grace period is over and you need to stop emailing anyone who has not given you implied consent (i.e. bought something from you) within the last 2 years or given you express consent.
Going forward, implied consent is only good for only 2 years. This means, you need to regularly clean your email lists and remove anyone who has not given you implied consent within the last 24 months. Keep in mind, best practices say you should stop emailing after a year at most. This is what we recommend at Amilia.
Pro - Tip
Do you have some recipients whose implied consent is about to expire but you think they might still be interested in receiving your email? Send them one final email and ask them if they want to continue receiving your email. If they don’t answer, you can take it as a no but if they say yes and give you express consent, you can email them forever or until they unsubscribe.
What is exactly is express consent and how do you get it? Express consent is given when the recipient specifically agreed and/or asked to receive CEMs from you. Obtaining express consent can be as simple as providing an unchecked box with the text “Please send me promotional and marketing information.” If the user checks the box, you have express consent. Please note pre-checked boxes don’t count, the recipient has to click and check it. You can also get express consent verbally or in writing.
However you get your express consent, you must keep a record of it with the following information:
- Whether consent was obtained in writing or orally,
- When it was obtained,
- Why it was obtained, and
- The manner in which it was obtained.
You need to keep track of implied consent the same way. The difference is, your implied consent is only valid for 2 years (24 months) while express consent is valid forever.
CASL is here to stay and so is email which remains one of the most powerful marketing channels out there - despite all those rumors that “email is dead”. However, the inbox is a very crowded space so it’s important that on top of complying with CASL, you are sending interesting, relevant content to your subscribers. Keep in mind, while email is powerful, it’s not your only channel. You can always reach them by facebook, direct mail, and the most powerful channel of all - word of mouth.😁
For more information on CASL check out the government website.