Are you ready for Canada’s Anti-Spam Legislation (CASL) taking effect July 1st?

Posted on Jun 26, 2014 4:30:00 PM by Kristen Goecke

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If you are an Amilia client, you are!  Still, there are a few things you need to be aware of.

Canada has become a hotbed for Spammers because the sending of commercial electronic messages has not been regulated.  It’s been the wild wild west up in here and all that is coming to an end as of July 1st with CASL coming into effect.  Many businesses are bemoaning that this will negatively affect their bottom line and is too restrictive.  As someone who has been an email marketer for over 5 years, I can tell you that these laws are not too restrictive and will not hurt your business.  Email marketers who follow best practices face greater restrictions to get their emails in the inbox and in front of eyes and the only way to ensure your emails land in the inbox is by following best practices. 

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Let’s get into the details of the new law.  First of all what is a Commercial Electronic Messages (CEM)?  If the purpose of your email is to encourage the recipient to participate in a commercial activity, or in other words to buy something, it is a CEM.  The following are NOT CEMs: invoices, receipts, account statuses, and emails regarding class, activity, membership and product status UNLESS you include a tagline or message that promotes a product or service which encourages the recipient to purchase said product or service.   Transactional messages that do not include calls to action to buy something are not CEMs and are exempt from the law. 

Newsletters, promotional messages, and even info about new registration periods are CEMs and there are three general requirements for sending these types of messages:

  • You need consent,
  • Identification information,
  • An Unsubscribe mechanism.

The trickiest part of this law is consent.  There are 2 types of consent, express consent and implied consent.  Express consent can be obtained a variety of ways but you need to understand that the onus of proving express consent is on you so you must to keep track of it.  Obtaining express consent can be as simple as providing an unchecked box with the text “Please sent me promotional and marketing information.”  If the user checks the box, you have express consent.  Please note you cannot use pre-checked boxes to obtain express consent.  You can also get express consent verbally or in writing.    Whatever you do, you must keep a record of express consent 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.

Express consent is forever or until the user withdraws their consent by unsubscribing.

Another way to get express consent is by sending out an email asking users to click the link if they want to continue receiving marketing and promotional messages from you.  I’m sure you’ve already received a few of these, I sure have.  Before you rush out and start sending out emails asking for express consent, let’s talk about implied consent and why you don’t necessarily need to get express consent.  Not yet anyway.

Implied consent is having an existing business or non-business relationship with the recipient.  The criteria for these relationships are as follows:

Business Relationship:

  • The recipient has made a purchase from you in the past,
  • The recipient has been party to a written contract with the sender in the past 24 months,
  • The recipient has made an inquiry or application of any of your products or services in the past 6 months.

Non-Business Relationship:

  • Recipient has made a gift or donation, has volunteered for or has attended a meeting organized by the sender in the past and you are a registered charity, political party or organization.
  • The recipient has had a membership any time in the past in the sender organization where the sender is a club, association or voluntary organization
  • The recipient has disclosed their address to the sender without indicating they do not want to receive unsolicited messages and the message is related to the professional or official capacity of the recipient.

There is a long transition period for implied consent.  For recipients who gave you implied consent prior to July 1, 2014, you have 3 years before you have to get express consent or stop emailing CEMs.  For recipients who give you implied consent after July 1, 2014, you have 2 years before you have to get express consent or stop emailing them.  Every time a recipient makes a purchase from you, is a party to a written contract, or gives you a donation, the clock resets and you have 2 years from that last transaction to legally email them CEMs – unless they withdraw their consent by unsubscribing.

If everyone on your list has made a purchase from you, you have nothing to worry about for 2-3 years.  You have at least 2 years from July 1st, 2014, to get express consent… if you want it.  Best practices would have you get the express consent after 1 year and if you don’t get it, stop emailing them.  Ever wondered what happened to that old Hotmail address or AOL account you abandoned years ago?  Some are recycled and some are turned into spam traps and honey pots in as little as 6 months of inactivity.  Emailing to a spam trap can damage your email reputation with the various Email Service Providers (Yahoo, Gmail, etc) to the extent that all of your messages are automatically relegated to everyone’s spam folder.  Emails that end up in the spam folder don’t get a lot of clicks, if any, and it won’t matter if you have express or implied consent, no one’s going to see your email.

The definition of Implied and Express consent and the rules on how long you can email these types of recipients are the trickiest part of the new laws.  The other 2 points you need to know about are: Identification Information and an Unsubscribe mechanism.  If you are an Amilia client, you do not need to worry about this.  All of your emails include a footer with your business name and address as well as an unsubscribe link.  You have 10 days to process unsubscribe requests – but again Amilia takes care of this for you automatically. 

Since we are talking email, here are a few other tips that will help you get in the inbox and engage your recipients:

  • If you are using a platform like Amilia to send your messages, the From address should be your organization’s domain and not Yahoo, AOL or whatever Email Service Provider you have an account with.  For example sending business email from Kristen@amilia.com is good but sending from Kristen@yahoo.com is bad.  In fact both AOL and Yahoo have made it so any @yahoo.com or @aol.com emails coming from any servers other than Yahoo or AOL will NOT get into the inboxes belonging to Gmail, Hotmail, Outlook, AOL and Yahoo recipients and more.  You can find more information on this here
  • Subject lines need to reflect what is in the messages.  Do not send out emails with misleading subject lines.  It makes the recipients angry and they will mark your mail as spam.
  • Don’t overwhelm your recipients with a ton of mail.  Try to limit your sending to about 4-6 emails a month.  This does not include receipts and invoices. 
  • Periodically clean your list.  It is always a good idea to remove inactive recipients from your list.  I recommend removal after about 1 year of inactivity but every business is different.  Just remember that recipients who are on your list with implied consent need to be removed after 2 years if you have not collected express consent.

You can find more information on CASL at the Government of Canada website.