Canada’s Anti-Spam Law (CASL) To Take Effect on July 1, 2014

557

It took nearly 10 years of hard work and much debate, but Canada’s new anti-spam legislation (known as CASL, or Bill C-28 for those that like to get technical) now has a start date.All marketers in Canada and elsewhere need to circle July 1, 2014 on their calendars because this is the milestone moment when arguably the world’s toughest spam law will take effect.It’s been a long journey for this game-changing piece of legislation that has it’s original roots way back in 2004 when the Task Force on Spam was established. Canada was on a mission to wage war on unsolicited email (…cue the fight music…!). After much effort, the bill gained Royal Assent in December 2010 but that set off a slew of debates, complaints, concerns and general wariness about whether this new law would actually afford Canadian inboxes with more protection or just add to the administrative burden of businesses.On November 28, 2013, the Treasury Board of Canada President (and all around anti-spam superhero), Tony Clement approved the final Industry Canada regulations. These final regulations will be published in The Canada Gazette on December 18, 2013, but at this point we essentially know what is covered.Yesterday, on December 4, 2013, Industry Minister James Moore announced that Canada’s anti-spam law (CASL) will come into force on July 1, 2014 with these wise words:

Our government does not believe Canadians should receive emails they do not want or did not ask to receive. These legislative measures will protect consumers from spam and other threats that lead to harassment, identity theft and fraud. We are prohibiting unsolicited text messages, including cellphone spam, and giving Canadian businesses clarity so they can continue to compete in the online marketplace.”

This announcement gives marketers 6 months to whip their mailing lists & other databases into shape to ensure CASL compliance.For those that want to really get into the nitty-gritty details, CASL is actually being rolled out in a phased deployment. Although the bulk of the CASL regulations that impact marketers will take effect on July 1, 2014, there are some components only taking effect down the road.Here is the technical breakdown from the official order:

• July 1, 2014 as the day on which sections 1 to 7, 9 to 46, 52 to 54, 56 to 67 and 69 to 82 of the Act, subsections 12(2) and 12.2(2) of the Personal Information Protection and Electronic Documents Act, as enacted by section 83 of the Act, subsection 86(2), section 88 and subsection 89(1) of the Act come into force;
• January 15, 2015 as the day on which section 8 of the Act comes into force; and
• July 1, 2017 as the day on which sections 47 to 51 and 55 of the Act come into force.

Based on this, it would appear that starting in July 2014 the government is enforcing the administrative monetary penalty for those that violate the new set of rules. It should be noted there are actually three government agencies tasked with enforcing CASL: Competition Bureau of Canada, Office of the Privacy Commissioner of Canada, & Canadian Radio-television and Telecommunications Commission (CRTC).Then, in July 2017, things go a bit broader because individuals will be able to apply to the courts to seek compensation for CASL violations. Of course, things may change between now and then, but certainly having individuals file CASL claims takes things to a whole new level because now anyone and everyone can be enforcer of the stringent new rules.

CASL is not something that can be ignored. So, if you’re one of those marketers who has been turning a blind eye to this, secretly hoping that the new law would never rock your world, then it’s time to wake up and face the music. The penalties for violations are intense (… Canada is not messing around with this!…) and can go as high as a $1 million fine for an individual or $10 million for companies.Or, maybe you’re the marketer in the USA (or any other country) who is saying “Oh Canada…. who cares about their rules, they don’t effect me…”. Well, you are wrong. Very very wrong. The new regulation doesn’t only effect Canadian organizations, it effects anyone who sends a commercial electronic message (CEM) that is accessed from a device in Canada. What this means is that if you’re a retail store in Florida, but you’ve got some folks on your mailing list who live in Canada (and probably visited your establishment when escaping the cold Canadian winter), then CASL is fully in effect when you message them. The CRTC (in Canada) will be working closely with the Federal Trade Commission (FTC) in the USA to enforce the new laws. So, playing the “but I’m in America” card, will not work!It should also be noted that CASL isn’t just an “email” law (similar to the CAN-SPAM Act), it covers other digital channels such as text messages (SMS). That means becoming CASL-compliant isn’t an exercise focused exclusively on email mailing lists, but other databases as well.

Show Me The Money Consent

Is it still OK to be using quotes from Jerry Maguire? I figure if CASL started in 2004, then referencing a movie from 1996 is fair game…. and, I’m going to use that to drive home the point that what people are going to be talking about in regards to the new CASL rules is consent, consent, consent.So much of the new regulations are rooted in acquiring proper express consent to ensure you are only sending messages to people that specifically asked for them. Gone are the days of tricking people into joining your mailing list; gone are the days of having a small pre-checked box that secretly said “receive future emails”; and really gone are the days of doing anything that is not out in the open and super obvious. Keep in mind, the goal of CASL isn’t to stop the use of email/SMS for commercial messages, the goal is to make sure that people only get the messages they asked for.It should be mentioned that there is no special “grandfather” clause for existing databases. Just because you’ve been emailing someone, does NOT mean you can continue emailing them if you haven’t gotten affirmative consent. This means you need to comb back through your database and anyone you don’t have a really solid opt-in paper trail for, you will need to re-confirm.There are certainly some exemptions to the new intense explicit consent rules, but the majority of these won’t apply in a typical email marketing or text message marketing scenario. Exemptions include:

• Messages between organizations that already have a relationship
• Messages sent internally within an organization
• Messages sent on behalf of registered charities
• Messages sent on behalf of a political party or political candidate
• Messages sent based on a referral made by a third party (although the third party must be disclosed)
• Messages sent to existing family and personal relationships (phew, your mom can’t sue you for $1 million for inviting her to Sunday brunch!)

OK, I Get It… This is Serious…. What Do I Do Now?

First, take a deep breath. So many marketers are going into panic mode and that is both unnecessary and not helpful.You still have 6 months to get organized, so we’re not in an emergency situation.In my previous post All About CASL (Canada’s Anti-Spam Legislation) in Plain English I have an entire section about what you should be doing to prepare. That to-do list is still very accurate and will certainly provide an excellent starting point on the road to becoming CASL compliant.I should also mention that if you are a customer of Elite Email with a signup form (or link to Subscription Center) on your website, then you are already following the proper double opt-in process that CASL requires. After someone signs up through that form/link, they are sent a welcome/confirmation email to double-check they want to join your list. We capture that confirmation consent, date stamp, and log the IP, so you have that paper trail automatically. On the mobile marketing side, we have already made updates in response to the recent TCPA Guidelines, which really overlaps a lot with CASL in relation to SMS/text-message marketing. This means you can easily enable a double opt-in process on your mobile channels as well.

Will This End Up Being Good For Legitimate Marketers?

For now this new set of regulations is going to add a lot of work for marketers…. and no one likes “extra work”. So, in the short term, there will be grunts and groans.However, there is a school of thought that once all the dust settles and everyone gets off the ledge (don’t jump!), legitimate marketers will actually have a better & easier time of getting their message through. Since non-compliant messages will be weeded out, we’re going to end up in an era where people really only get the emails they asked for. This means that the average consumer won’t have to sift through unwanted email to find your wanted message. It may only be your fully CASL compliant message sitting in their inbox, where they can eagerly see it, open it, and interact with it. Of course, only time will tell whether there is a net ROI gain for marketers who may see their list size decrease but engagement increase, but certainly there does remain a silver lining as everyone works towards implementing CASL compliance.This blog post is intended to provide our general comments on the new law. It is not intended to be a comprehensive review nor is it intended to provide legal advice. Readers should not act on information in the publication without first seeking specific advice from their lawyer. In short, I am not a lawyer, nor do I pretend to be a lawyer.