Canadian Anti-Spam Laws: A Primer

By Martha Jack posted Jun 19, 2014 14:57

  

As many of you may have heard and may have been discussing in staff meetings, Canada’s Anti-Spam Legislation (CASL) comes into effect on July 1. If your organization has any Canadian members or non-members or you are sending any commercial electronic messages (CEMs) to recipients in Canada, this will affect you, even if you are based in the United States or abroad.

As a Canadian, I’ve put together a little primer to help you navigate CASL…my apologies for any havoc my country’s government has caused.  Note: I am a social media consultant and most definitely not a lawyer.

For the purposes of this legislation, a CEM is any commercial electronic message, which includes text, sound or voice messages sent to an electronic address. It could be debated that your Connected Community’s daily digest emails are not CEMs as they are produced by the members themselves and don’t necessarily have any commercial intent, but the more cautious approach is to operate under the assumption that they are CEMs and proceed as such.

There are three parts to the legislation:

  • Consent – You must have express or implied consent to be contacting the recipient
  • Content – Your organization’s name and contact information must be easily accessible
  • Unsubscribe – It must be easy for a recipient to unsubscribe electronically or a request to unsubscribe must not take longer than 10 days.

First, the good news: As an association, membership in the association is seen as “implied consent.” For the purposes of CASL, “membership” means having been accepted as a member of a club, association of voluntary organization in accordance with its membership requirements. Your association also needs to meet the following requirements to use membership as ”implied consent”:

  • “A non-profit organization
  • organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit, and
  • no part of its income is payable for the personal benefit of any member, proprietor or shareholder unless that entity is an organization whose primary purpose is the promotion of amateur athletics in Canada.”
  •  

    If your organization fits those three requirements, your CEM must still contain identification information and an unsubscribe mechanism.  Identification information includes address, phone, email or website that is valid for 60 days and the unsubscribe mechanism must be easily accessible electronically and take effect within 10 days.  For mail sent from your Connected Community, the unsubscribe mechanism is in place and I would consider adding a digest link to your community or website’s contact page.

     

    Non-Members in your Connected Community

    For your Connected Community, this means you are covered as far as members are concerned. That being said, consider if you have elected to give any Canadian non-members access or auto-subscribe them in an all-members open forum, as some examples. Depending on how you received their contact information, you may not have consent to send these individuals CEMs.

    Here are some cases where a non-member will have given you implied consent. Remember that it is up to your association, not the recipient, to demonstrate that you have implied consent:

  • You have an existing business or non-business relationship: this applies to individuals who have purchased a product or service from the sender in the past 2 years and to prospective clients who have made an inquiry within the past 6 months.
  • Conspicuously Published Contact Information: This situation applies in situations where a recipient has conspicuously published his or her electronic contact information, provided the CEM is relevant to the recipient’s business. As an example, you are an association of bakeries and have collected contact information from the websites of Canadian bakeries.
  • Personal Relationships: You have an existing family or personal relationship with the recipient.

Until July 1, you can send an electronic message to your Canadian non-members requesting that they opt-in to receiving future messages.  CASL also contains a three-year transitional period during which consent is implied for existing business relationships, as long as that relationship already involved your organization sending the recipient CEMs.  

 

Other Exemptions

Certain CEMs are exempt from the requirements under the CASL. Examples of these include:

  • Confirming a transaction between the recipient and the sender
  • Responding to a request for a quote or estimate
  • Providing warranty or product recall information
  • Providing factual information about the use of a product or service
  • Bill Payment Reminders
  • Communications sent internally within a business or between businesses that have an existing relationship
  • Contacting a prospective client that has been referred by an existing client (only a single message to such prospect is allowed)
  • Obtaining consent for other third parties to send messages to the recipient

 

Questions to Ask to Make Sure You Are Compliant:

  • Do you have express or implied consent from Canadian recipients? Membership will give you implied consent, but what about non-members?
  • Do you use or buy industry distribution list from third-party sources?
  • Is it easy to unsubscribe and is your organization’s contact information displayed?

For more information: Here is a FAQ

I hope that answered some of the questions about how CASL will affect your organization. Bottom line: it is the Canadian non-members that should raise a red flag, specifically regarding whether or not you have consent. If you have any questions, please feel free to connect with me on HUG or email me at martha@econversemedia.com

 


 

 

 


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Comments

Jun 24, 2014 11:20

Glad to help Matthew and Ross!

Jun 24, 2014 11:19

Very good article, Martha. Thank you for this.

Jun 24, 2014 10:51

This was really helpful. Thank you for posting this, I shared it with some people in my Communications Department and they didn't even know this was happening!