May 1, 2014
Canada’s Anti-Spam Legislation, aka CASL, is set to drop on July 1, 2014, so I’ve been reading up on it. I’ve done a bunch of homework and recently attended a talk at McInnes Cooper, so I thought I’d share some notes on what I understand so far and the best links I’ve found relating to CASL.
If you’re in the business of email marketing in any way then you should understand this law, because well, it’s a new and crazy law and as Ali G. once said, “you gots to know the law”. It will affect business email and messaging, known as “commercial electronic messages” or CEMs for short. This means email, SMS, Twitter DMs, etc.
I agree that we should have spam laws (Canada is one of the last G8 countries to do so), but word on the street is that the CRTC are going to be huge jerks about it. For average people, this won’t really affect the annoying stuff like the fake bank account phishing scams or cheap pill spam emails, because those originate outside of Canada anyway.
But with a $200 penalty per violation and up to $1,000,000 personal or $10,000,000 business penalties per day, it doesn’t take a massive list to make class action lawyers happily wait (several days, even) for someone to hit send on that one wrong email campaign.
Privacy lawyer David Fraser thinks there likely will be penalties out of the gate, to set examples. My understanding is that the violations can occur starting July 1, 2014 and incur there on out, but law suits have to wait three years until 2017. Penalties from the CRTC can start right away, though.
It’s real and is set to come into effect this Canada Day, July 1, 2014.
Anti-spam means any message, any email that is commercial/business, SMS, social, etc. Seems to me that this affects any kind of network that lets you send a direct message to someone, which would count as a CEM if it is commercial in nature.
You will need to prove you have “consent” to send people commercial messages to comply with new spam laws.
There are two types of consent: explicit and implied. Explicit pretty much means a sign up or opt-in by a person to a mailing list.
Implied consent is tricky. It could mean a number of things, from an existing business relationship, to having your email address clearly published on your website, or someone giving you a business card and not saying “please don’t send me commercial electronic messages”.
Asking for consent via CEM after July 1st will be a violation of CASL.
You also can’t cause or permit spam to be sent. Does that mean “forward this deal to a friend” buttons, for example? I’m not sure and am trying to get clarification on what that actually means.
If you use good email marketing software (MailChimp, SimplyCast, Constant Contact, etc.), with a list that double opted-in (signed up online, then confirmed by clicking an email link), that can easily unsubscribe, you’re probably ok. If you want to be safe then be sure you have proof of consent.
If you send marketing emails on behalf of a client, you’ll have to have your client’s address and phone number, in addition to your address included in the email.
It will probably be easy to report email address as spam directly to the CRTC (in addition to clicking your email spam button) .
You can spam your family.
I recently attended a talk by David Fraser at McInnes Cooper, an event put on by Digital Nova Scotia. It’s worth going if they have more events. A link to the deck is below.
• David Fraser, Presentation on Canada’s new Anti-Spam law.
• Progress Magazine, Email marketing: Are you a spammer?
• ExactTarget, Answering Questions About Consent and CASL.
• Constant Contact, Implied and express permission in CASL regulations.
• Miller Thompson Law, Getting Ready for Canada’s Anti-spam legislation – Issues for Charities (PDF) (still a good overview, too).
There you go, kind of interesting. Hopefully it doesn’t turn into a big kerfuffle that distracts everyone needlessly.
Note: I am not a lawyer and this is not legal advice. But it’s probably decent advice just the same.
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