Panic over the new CASL Canadian Anti Spam Legislation

There is a bit of panic going on regarding the new Canadian Anti-Spam Legislation (aka CASL). I have received several emails recently from various companies and organizations asking that I "provide consent," "opt-in" or "confirm subscription." Some from companies I know I have subscribed to and others I know I have not subscribed to and a few that lie somewhere in between (implied consent).

For any company that has been doing legitimate email marketing up until now, legitimate meaning you have a double opt-in subscribe form on your website, then you need not worry, you have received explicit consent and are acting within the CASL. The following section from CASL explains it clearly: Knowing that people and businesses may need to change their practices when it comes to sending commercial electronic messages (CEMs), the legislation includes a transitional provision that relates to the consent requirement. There are two types of consent – express and implied. The transitional provision set out in section 66 of CASL applies to implied consent. Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs. In contrast, express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent. So, everyone please take a breath, check to see what type of email subscribe you have on your site and act accordingly. In some cases it might not be so cut-and-dry. For example if your subscriber list is a mix of explicit consent acquired via your website double opt-in form, as well as email addresses from people you met at a trade show, business mixer, etc. In that case you will need to do some list segmentation. If you have been keeping notes or tagging subscribers as they come in you will know which bucket they fall into and can act accordingly.

Definitions

• CASL - Canada's Anti-Spam Legislation
• PEPIDA - Personal Information Protection and Electronic Documents Act
• CEM - Commercial Electronic Email
• ESP - Email Service Provider
• TSP - Telecommunications Service Provider

Email Best Practices: If you have been following these guidelines then your email subscriber list should be fine.

• Obtain "express consent" to send CEMs
• clearly describe the purpose(s) for requesting consent;
• provide the name of the person seeking consent, and identify on whose behalf consent is sought, if different;
• provide contact information for either of those persons (mailing address and either a telephone number, email address of web address); and,
• indicate that the recipient can unsubscribe and make it simple to do so
• Use "double opt-in" subscription methodology

Disclosure: This document was not written by a lawyer. In fact, I didn't even write it myself! It does not constitute legal advice on the Canada Anti-Spam Legislation. Official information about the legislation can be found at this website. If this is all a bit too confusing or you're still not sure if your organization is CASL compliant or not, please don't hesitate to contact my advisor Chris (who wrote this) for a free consultation.