APPROACHING THE NEXT STAGE OF CASL

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For three years, Canadian Anti-Spam Legislation (CASL) has been front and centre in business, an indirect response to email becoming one of the primary sources of connecting. Companies must now include contact information and an easy method for recipients to unsubscribe from emails or risk a penalty of up to $10 million from the Canadian Radio-television and Telecommunications Commission.

When CASL was initially rolled out in July of 2014, the Regulatory Impact Analysis Statement communicated that all relevant organizations―from businesses to governing bodies―would have time to adjust (three years exactly) and determine how to roll out the anti-spam legislation in Canada before the government introduced the Private Right of Action mandate.

Some companies have a system that reviews data and includes all mandatory information necessary to be compliant with CASL, including tracking express and implicit consent, IP address and date/time stamp when express consent was given, and even screen shots of the exact form and wording that was used to collect consent.

Although the date has been pushed back from July 1, 2017, the new anti-spam legislation is ultimately meant to enforce that anyone who receives Commercial Electronic Messages can sue the sender if they have not complied with the specific CASL mandates. Violated parties will be legally entitled to a Private Right of Action and to seek statutory damages. However, experts suggest that the government is now amending the extreme penalty that was being pedalled.

Delaying the next step is good news for businesses, either way, who have experienced some challenges in ensuring their compliance with CASL as the Private Right of Action and end of the transition period both approach. Despite the postponement, though, it is important to recognize that CASL has not been repealed or retracted either.

Businesses can continue to be fined for violations, but not sued in court in the interim. Just like finding out an exam has been delayed would offer peace of mind and extra study time for a student, this delay is arguably a good opportunity for businesses to review and reassess their CASL compliancy.

 

How Businesses Can Prepare

1. Review client details regarding consent: This includes where the recipient email addresses came from, whether express or implied consent was provided to distribute commercial messages, and keeping all records relating to consent. If you have been sending messages to users with implied consent you have until July 1 to get that user to provide express consent to continue to email them.

2. Clarify the meaning of commercial electronic messages: A Commercial Electronic Message (CEM) is a message whose purpose is to encourage participation in a commercial activity. CASL does not apply to:

  • Non-commercial activity
  • Voice, facsimiles or auto-recorded voice calls (robo-calls)
  • Broadcast messaging including tweets and posts

Under CASL, an electronic address could be:

  • A telephone account
  • An instant messaging account
  • Any similar account

3. Consent and disclosure to subscribers: Consumers can be freely contacted if they gave express consent and did not provide any indication that they want to be removed. Meanwhile, companies are required to be straightforward regarding the communications they will be sending―including the type of messages, separate links to privacy policies, and any software installations.

4. Ensure unsubscribing to their emails is easy and compliant: Businesses must be upfront about who they are with information to reach them and helpful footer links regardless of the email. Their communications should also be easy for consumers to remove themselves from their contact list, free of charge and effective within ten days.

5. Understand the CAN-SPAM rules and penalties for violating CASL: Communications must contain clear information on who the sender is, or whom the email is sent on behalf of. The message must also contain two of the following; a valid mailing address, a phone number, an email or web address of the corporation sending the email. CASL applies to both American companies sending messages to Canadian users and Canadian companies sending message to users outside of Canadian borders.

 

Looking for more information?

Vigorate Digital Solutions works with clients through the CASL transition to ensure email content compliance, review and track consent from recipients, import contact lists, request confirmations, and organize their subscriber data. Given that each company’s needs are different we encourage you to contact us for more information to ensure you are compliant with anti-spam legislation.

Related Article:

Goverment of Canada: Canada’s Law on SPAM and Other Electronic Threats