The Anti SPAM legislation Canada is the Canadian law that regulates the use of email, SMS texts and other forms of electronic communication for marketing purposes. It is also known as CASL (Canada’s Anti Spam Legislation). This article gives you information on this law and will enable you to determine how to comply to the rules in your marketing.
CASL was introduced on July 1, 2014. It was created to protect Canadians against unscrupulous marketers while still ensuring business can compete in the global market. The law came into effect for software application installations on July 1, 2015. A provision for private right for action was scheduled for July 1, 2017, but has been suspended. This provision would have given the right for any party to sue another party under this legislation. CASL is a federal law and is enforceable only by the Canadian Government through the Canadian Radio-television Telecommunications Commission (CRTC).
- July 1, 2014 – CASL is adopted
- July 1, 2015 – CASL now applies to software application installations
- July 1, 2017, – Provision for private right of action was not adopted and is suspended
What is SPAM
Spam is defined as an unsollicited or undesirable message in the form of an email, SMS text or other forms of electronic communication. In the text of the law, the legislation talks about Commercial Electronic Messages (CEM) which are related to the promotion of selling or buying products or services. This also includes offering business or investment opportunities.
Example of CEM. Here is an example of marketing done by a real estate agent. Any communication related to advertising a home for sale or an open house is considered CEM. Information bulletins emailed to prospects containing area sales statistics or asking the individual if they want to sell their home or buy a new home are considered CEM. However, replying to an information request, sending standard forms, emailing a specific transaction paperwork or personal matter discussion are not considered CEM.
Exemptions. Certain types of communication made by a business are exempt from the legislation.
- When communicating with family members and friends
- Messages sent to acquire or get information on a product or service
- Reply to an inquiry or a complaint
- Communication between employees within a company
- Communication between employees of two companies having business relationship
- Messages to enforce a legal right
Legally send CEMs. The business must obtain consent from the prospect before sending a CEM. This is a hen and egg problem because an email or SMS to ask for consent is considered SPAM. There are two different types of consent:
- Express consent
- Implied consent
Express consent. Express consent can be verbal, electronic or in writing. In all cases you need to record the consent as evidence in case your business becomes the subject of an investigation regarding CASL. Express consent is valid when the prospect has been asked for consent and has replied affirmatively. You can obtain express consent when people meet you at a booth where your business is displaying products, when they participate in a contest, when they request information on your products or services and other similar fashion. They must be informed of your intention to send them CEMs and must be provided the following information:
- Business representative name
- Business Address
- Phone number, email address or website
- A functional mechanism to unsubscribe from your marketing
Implied consent. When consent is implied, the CEM can be sent without express consent. Consent is implied when any of the following situation exist:
- When the prospect is a referral and the referring person is a family member, a friend or has an existing business relationship with both the business representative and the prospect.
- The prospect has published their contact information and has not specifically declined solicitation. The content of the website, blog or any other place the contact information is published is related to the business representative market.
- Both the prospect and the business representative are members of a non-business membership, association and similar group. They have been members for over two years.
- The prospect and the business representative has an existing business relationship active within the last two years. The relationship is also valid when the prospect has requested information with the last 6 months.
- The prospect has given the representative his contact information and has not refused to receive CEM.
Each CEM must contain the business contact information and a functional mechanism to stop the communication when the prospect no longer wants to receive messages.
Complaints can be reported to the CRTC. The commission may investigate if the messages go against the legislation.
When judged to violate CASL, the business will be subject to penalties. The amount will be determined base on the nature of the violation, the business repeated offenses, the benefit acquired from spam and the business ability to pay the penalty.
The penalties may be up to $1 million for an individual and $10 millions for a business.
How to protect yourself as a business owner
Take steps to review your electronic prospect database and marketing solutions to meet the CASL requirements. You will need to:
- Determine if you are sending CEMs
- Identify how your CEMs are sent
- Verify if you have exemptions or consent
- Develop methods to obtain express or implied consent
- Ensure CEM contains contact information and unsubscribe tool
- Determine where CASL will affect your business processes
- Modify your process as required
- Keep evidence of “due diligence” in all matter related to CASL.
Anti spam legislation Canada goes a long way in protecting Canadians against unsolicited and unwanted electronic messages. It also legislates spyware and malware downloaded to your computers and electronic devices. CASL became Law in 2014. The United States has introduced a similar Law in 2003 call CAN-SPAM.
The major difference between these two Laws is the opt-out or into receiving business messages. In the States, you must opt-out to refuse receiving CEMs. In Canada, you must opt-in. For business, this means that we cannot pre-populate an opt-in check box on a form. The individual must click on the box to indicate express consent.
If you market your business using drip messaging or other types of electronic message, ensure you are aware of the anti spam legislation applicable in your Country and in your market Country. Fines are high and it is always better to be safe than sorry.
If you have any question about CASL, spam or CEM please use the comment area below and I will find an answer for you. If you have any comment or additional information, please write them in the comment area below.
Communicate safely with your customers.