Published on March 12, 2014
We Email CANADA’S ANTI-SPAM LAW UPDATE: WHAT IT MEANS FOR YOU
TWEET! 2 Follow us on Twitter! @WhatCounts @DeliveryCounts Tweet about this webinar using #CASLwebinar
TODAY’S SPEAKER 3 BRAD GURLEY Director of Deliverability, WhatCounts Email email@example.com Twitter @DeliveryCounts
A QUICK DISCLAIMER Before we begin, please be advised that this presentation includes our informed interpretation of the Canadian Anti-Spam Law and its applications. The commentary is for informational purposes only and is designed to help you, as marketers, better understand the law and how it might affect you. The presenters are not lawyers and nothing presented here is, or should be construed as, legal advice. It may be necessary to consult your legal or compliance department for specific guidance in regards to adherence with the law. 4
CANADA’S ANTI-SPAM LAW Canada’s Anti-Spam Law (CASL) takes effect July 1, 2014. It is currently considered one of the toughest anti- spam legislations in the world. Key topics in preparation for CASL: 1. Who is affected? 2. What is required? 3. What are the penalties for violation? 4. Are there any exceptions? 5. What is the transition period? In addition to these questions, we’ll take a look at some special case examples. 5
CASL: WHO IS AFFECTED CASL applies to all commercial electronic messaging (CEM) sent from, or accessed by, a mail server housed in Canada. This will most likely affect you if: • Your organization is based in Canada • Your ESP or email provider is based in Canada • Your recipients live in Canada (or have an email address ending in .ca, .nf, .nb, .ns, etc.) However, you are likely not impacted if ALL of the following are true: • Your organization has no physical presence in Canada • Your ESP or email provider is based outside Canada • You have no Canadian subscribers Whether or not the law applies to you is relatively straightforward in most cases. However, many senders are unsure whether they have subscribers located in Canada. 6
CASL: WHO IS AFFECTED Determining if your recipients are covered under CASL • Email address ends in a Canada-specific prefix – .ca – .nl – .ns – .nb – Various regional extensions • Physical address located in Canada – Billing address could also apply • Bank or credit card issuer located in Canada Note: CASL also applies to SMS and IM messages as well, in addition to installation of computer software. 7
CASL: REQUIREMENTS CASL requires that you have affirmative consent to send any mail to a subscriber. Two types of consent: 1. Express consent 1. The subscriber opted in through a compliant opt-in form to receive marketing messages from your organization 2. This consent never expires unless revoked by subscriber 2. Implied consent 1. The subscriber has an existing business or non-business relationship with your organization 2. This consent expires after 2 years In the event of a complaint, the sender is required to provide proof of consent in compliance with CASL 8
CASL: REQUIREMENTS Express consent must be obtained via a CASL-compliant opt-in form. This form must include: 1. An action taken by the subscriber 1. Entering email address and clicking Submit 2. Checking a box requesting emails and clicking Submit/Continue 1. Pre-checked boxes are NOT affirmative 2. Clear indication the user is requesting commercial email 3. A statement that the user can unsubscribe at any time 4. The identity of the organization sending the mail 5. At least one piece of contact information: 1. Physical address (PO Box is OK) 2. Website address 3. Email address 9
CASL: REQUIREMENTS Like CAN-SPAM, CASL also requires certain elements be included in the body of any CEM: 1. Clear identification of the sender 1. If sending on behalf of a third party, all involved parties should be identified unless any party had no part in determining the target list or content 2. A working method to contact the sender 1. “No-reply” From address does not meet this requirement 2. Physical mailing address is an option 3. A functional, regularly monitored email address is recommended 3. A working unsubscribe method 1. Must be functional for at least 60 days after the message is sent 2. Must not incur any costs 3. Can be either an electronic address (email) or a hyperlink 4. Sender must process requests without delay (10-day maximum) 10
CASL: PENALTIES Penalties for violation of CASL can include: • Up to $10 million in administrative fines per message sent – These penalties will be administered by the Canadian Radio-Television Commission (CRTC) • Private right of action – Individual recipients can sue for actual and punitive damages – This right takes effect after the 3-year transition period 11
CASL: EXCEPTIONS & EXEMPTIONS A few types of messages are exempted from consent rules, but must still include the ID of the sender and unsubscribe link: • Non-commercial messages – Purely informational – No business advertisements or solicitations • Quotes or estimates • Transactional emails – Order confirmation – Shipping notice • Warranty, safety, or recall information • Information about – Ongoing use/purchases – Ongoing subscription, membership, loans, etc. – Employment relationships or benefit plans • Messages that directly deliver a product, good, or service – Updates and upgrades • Opt-in confirmations are considered CEMs and are not exempted 12
CASL: EXCEPTIONS & EXEMPTIONS CASL does not apply to messages: • Between parties with a personal or family relationship – Parties have had voluntary contact prior to the mailing • Between businesses with ongoing relationship – Must be directly related to the nature of the relationship or role of the sender/receiver • Sent in response to a request • That enforce a legal right or obligation • Sent via closed systems – Proprietary messaging systems (online banking inbox, etc) – Messaging systems where the ID and unsubscribe method are included within the platform • User profiles • Blocking users • By registered charities raising funds • By political candidates or organizations soliciting political contributions Even though these messages are allowed by CASL, they may not be allowed by ESPs or bulk mail providers. 13
CASL: TRANSITION PERIOD CASL has a built-in transition period of 3 years for some provisions to take effect • Implied consent timeline is increased from 2 to 3 years for the initial transition • Private right of action is not allowed during the initial 3-year transition period In addition to the transition period, any express consent received prior to CASL effective date will be considered compliant with CASL, even if the newly- required elements were not included. • In Canada, consent must have been compliant with the Personal Information Protection and Electronic Documents Act (PIPEDA) for this to apply • Outside Canada, consent must have been acquired in accordance with any applicable laws of that jurisdiction 14
SPECIAL CASES & EXAMPLES Under CASL, senders are allowed to get consent to send on behalf of third parties, such as affiliate programs. However, the law places some restrictions on these activities: • Senders are allowed to request consent for unnamed third parties to send email – Example: a frequent flyer program requests consent to send on behalf of “partners” to be named later • Could include rental car companies, hotels, etc. • All parties involved are held accountable for managing consent – If a user requests an unsubscribe through one of these partners, they should be unsubscribed from mail from all partners • Including the original sender • Recipients who have an existing relationship with a potential client can refer that client to a sender – The sender is allowed to send ONE CEM to the prospective client Again, it’s important to remember that what is legal under CASL is not necessarily allowed by ESPs or bulk mail providers. 15
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