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The CASL conundrum The rollout of Canada’s Anti-Spam Legislation (CASL) in 2014 became a source of anxiety for Canadian marketers, causing them to re-evaluate an email campaign’s ability to generate awareness, engagement and growth – both for themselves and their clients. Over 10 years in the making. CASL was designed to curtail the unwanted, unsolicited large-scale email collection – which led to Canadians receiving unsolicited and often disingenuous marketing emails – otherwise known as SPAM. Malicious software being channeled through spam email, left recipients vulnerable to identity theft, fraud, malware, ransomware and more. CASL made it through the final stages of the legislative process during 2010. The bill didn’t come into force until July of 2014; the final provisions weren’t in effect until July of 2017. The phasing-in of CASL allowed Canadian businesses, organizations, and individuals time to become familiar with the new law, and to make operational changes necessary to comply and avoid hefty fines up to $1 million for individuals and $10 million for corporations. A double-edged sword. One year following CASL’s adoption, there was a 37% decline in spam originating in Canada, and a 29% decrease in overall spam received by Canadians. Whereas the American CANSPAM operates on an “opt-out” philosophy that requires recipients to express that they’re not interested in receiving commercial promotions, CASL is structured around an “opt-in” philosophy. The obligation lies with the marketer or sender to obtain the consent of the recipient before sending any commercial content. What you need to know. To send out promotional materials via email requires “implied consent.” This means: • There’s an existing business relationship. There has been a purchase of goods, services or land, an acceptance of business or investment opportunity, inquiry about purchasing or business/ investment opportunity, or there’s an existing contract between sender and recipient.
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• There’s an existing non-business relationship. This condition applies mainly to charities and not-for-profit organizations/associations and includes those who’ve donated or gifted to the organization, volunteered, or attended its events. • There’s disclosure. Implied consent exists when an email address is provided to you, without an indication that the sender doesn’t wish to receive unsolicited promotional messages to that address. • There’s “conspicuous publication.” When you obtain an email that’s been published for all to see (for example on LinkedIn, a website, or a publication), and the publication of that email is not accompanied by a statement that indicates they don’t wish to receive unsolicited promotional messages, then implied consent exists. Timing is everything. When it comes to implied consent obtained through a product or service inquiry, the consent is only legitimate for six months from the date of the inquiry. When it comes to implied consent obtained via purchase, the time constraint is two years from the date of last purchase. Three tips to avoid a CASL calamity 1. Keep consent records – and keep them up-to-date. The responsibility lies with the sender to obtain consent. This means you also need to be able
to prove it if things go south. Make sure you’re on top of your mailing list when it comes to how and when you obtained consent. And keep it updated and current. 2. Adjust your email campaigns. Mass email campaigns don’t generate the same engagement and conversions as focused and personalized ones. With CASL, marketers can head back to the drawing board to generate more personalized content, which will ultimately net you more conversions. 3. Turn implied consent into ‘express’ consent. With only six months before implied consent runs out, use that opportunity to convert them into subscribers – whether it’s to a newsletter, news feed or blog. Joanne Gore, President of Joanne Gore Communications, is a B2B marketer who’s passionate about print. She has spent the last three decades helping hardware, software, manufacturing and print companies stretch their marketing dollars with programs that generate awareness, customer engagement and growth. Email: joanne@joannegorecommunications.com LinkedIn: linkedin.com/in/joannegore121 (Disclaimer: The information provided within this article is not intended as legal advice, and in no way constitutes legal advice. Any interpretations or recommendations provided within this document or based on the information provided within this document cannot be construed as providing legal advice. Always contact a licensed attorney for legal advice).
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