Marketing in Canada? You Must Comply with New Law by July 1, 2014.

The hammer fell on Wednesday, December 4^th: Canada’s Anti-Spam Law (CASL) regulations were officially published, putting the marketing industry on notice that Canada means business when it comes to driving out spammers, phishers, and identity thieves.

They’ve set the bar high:

CASL applies to any commercial electronic message sent from or accessed by a computer system in Canada.

Meaning even if your intended recipient doesn’t reside in the Great White North, if he or she opens your communication while in Canada, CASL applies. Effectively this puts the onus on marketers to be cognizant of where (geographically) recipients are opening electronic messages.

Ouch.

Most of CASL comes into force on July 1, 2014.

The key tenets

So what does that mean to marketers? Below is a summary of the essentials to help you better contextualize what compliance will mean for you.

Primary Scope:

• Senders of any form of commercial electronic messaging (CEM), including (but not limited to) messages to email addresses and social media accounts, text and image messages sent to a mobile phone, and telemarketing.
• Telecommunications service providers (TSPs) that install commercial software on another person’s computer system.

Consent:

• Must obtain 100% express consent prior to sending any CEM.
• Must obtain 100% express consent prior to installing a commercial computer program.
• Must have proof of consent, including source and time.
• Can rely on implied consent to send CEMs to recipients where there is an existing relationship.

Unsubscribing:

• All CEMs must contain an opt-out method.
• Marketers cannot confirm the opt-out request via a follow-up method.

Disclosure Requirements:

• Clearly identify the sender of the message.
• Include a clear “subject line” and “From” name that reflects the purpose of the CEM.
• Include a notice that the message is for commercial purposes.
• Include a physical address.
• Include a URL, email address, or phone number where the sender can be reached and that is valid for up to 60 days after the CEM is sent.
• Include a valid and working mechanism that will unsubscribe the recipient within 10 days.

Exclusions:

• CEMs between individuals who share family or personal relationships.
• CEMs sent within an organization and/or between organizations that already have a relationship.
• Quotes and estimates.
• Responses to complaints or inquiries.
• Pre-existing transaction materials and/or factual information (e.g., loans, memberships, service accounts, bank accounts).
• Fundraising on behalf of registered charities.
• Contribution solicitations on behalf of political parties, organizations, or candidates for publicly elected office.

Penalties for Non-Compliance:

• Fines up to $10M CAN per violation.

CASL versus CAN-SPAM

Although there is overlap between the US CAN-SPAM laws and CASL, there are distinct differences that marketers need to understand. Here are the main ones:

CAN-SPAM

• Addresses spam only
• Applies to email
• Marketers can technically email a person at least once without prior consent
• No private “right of action” (An individual or business cannot file a lawsuit against a suspected spammer. Only the government and/or ISP can do so.)

CASL

• Addresses a broad range of Internet issues
• Applies to all forms of commercial electronic messages (e.g., email, SMS, social, voice)
• Prior consent required prior to marketing
• Private “right of action” is available to anyone (An individual and/or business can file a lawsuit.)

Bottom line: prepare now

If you haven’t already, I highly encourage you to ramp up your planning and implementation strategies to ensure you’re compliant by July 1, 2014.

A good way to start is to assess how you manage opt-ins across all of the electronic mediums you use, as well as how you maintain a record of each opt-in (source and time).

Although there will certainly be further guidance and provisions put in place once the Law goes into effect, don’t risk finding yourself on the wrong side of an expensive complaint.

Key dates

• Jul 1, 2014 – most CASL regulations come into force
• Jan 15, 2015 – the provision related to computer programs will come into force
• Jul 1, 2017 – the Private Right of Action will be enacted

Key resources

• The new regulations and related materials are available at FightSpam, Canada’s Anti-Spam Legislation site.
• Additionally, they will be published in the Canada Gazette.
• And please feel free to watch my recent webinar: Fall into Compliance: Canada’s Anti-Spam Law.

Photo of “We Are Mounties” by Calsidyrose, used under a Creative Commons 2.0 license.