Canada's Anti-Spam Legislation
By Julie King | February 19, 2014
The new “Canada’s Anti-Spam Legislation,” or CASL, comes into effect on July 1, 2014. It’s designed to protect Canadians from unwanted and, in the case of malware, dangerous electronic messages and solicitations. Business owners need to recognize that the regulations are far-reaching and have dramatic consequences to those who do not comply.
How serious are the penalties?
Government fines of up to $10 million per incident for corporations and up to $1 million for individuals per violation. On top of that, civil suits can go as high as $1 million per day in which a contravention occurred.
What does CASL affect?
CASL applies to commercial electronic messages. This covers everything from emails to text messages and, in some cases, social media. It targets any messages regarding some form of business, product or service, regardless of whether or not any financial transaction is expected.
In practical terms, monthly email newsletters, emailed special offers, or texting potential clients are all affected.
So what do I need to do?
The heart of CASL is consent. Canadian businesses have the new requirement that, for everyone outside of their existing customer base (and a few other limited contact types) you must now get explicit consent before you can send a commercial message to an electronic address.
There are three criteria for explicit consent.
1. You must clearly explain what you are seeking consent for – such as adding an email address to a distribution list.
2. Explain who the consent is being given for – if not you, then what person, company, charity or other organization.
3. Have the user opt-in by performing an intentional action – such as checking a box to have their electronic address be approved for use outlined in the step above.
CASL does, however, recognize implied consent. This includes persons with whom you have had business dealings with in the last two years or currently have signed contracts in effect.
As far as non-business relationships, people who have performed charity work for your organization, made a donation of some form or are a member of your organization (within in the last two years) are also considered to have given implied consent. There are, however, specific conditions to each of these cases.
How long do I have to prepare?
Fortunately, there is a 3-year transition period for businesses to get their house in order. During this time, anyone with whom you have ever had businesses relationship (or a non-business relationship as explained above) is considered to have given implied consent. This gives you until July 1, 2017 to reconnect and get explicit consent to continue electronic communication in the future. After that July 2017 deadline, that window has closed.
Note that anyone who does not fall under an existing business or non-business relationship has not given consent under CASL and cannot be contacted electronically after July 1, 2014.
Businesses must take care to become CASL compliant. While we have yet to see how these laws and penalties will be interpreted in court, there is no doubt that failure to comply will be very costly.
But how can you be sure you’re CASL compliant?
Does your current email newsletter need to be updated?
If someone gives you a business card with their email address on it, what can you do with that address?
Can an email field be required on an online form?
For a more in-depth look at CASL and what it means for you, as well as other exclusive content, stay tuned for the launch of our MemberZone.
To see the legislation in full, visit: http://laws-lois.justice.gc.ca/eng/acts/E-1.6/FullText.html