New Anti-Spam legislation in Canada

This is a reprint from Mailchimp’s March 11th 2014 update on the new Canadian anti spam law.

 

For better or for worse, change is one of the only constants in our life, and with that in mind, we wanted to give you an update on the newly enacted Canadian Anti Spam Law (CASL).

How this applies

CASL applies to what the Canadian law calls an “Electronic Commercial Message” (ECM). There are two elements that comprise an ECM: to whom/how is it being sent and what is being sent.

Who it applies to

CASL applies to Canadian residents or anyone sending to Canadian residents, be they individuals or businesses. CASL also applies to any “electronic message” which includes:

  • Email
  • Instant message
  • Text message
  • Any other electronic correspondence

It doesn’t apply to faxes or fax machines though so rest easy if you’re still making use of that technology.

What Is Allowed

According to the new law, consent is NOT required if you are:

  • Sending to a family member or someone with whom you have an established personal relationship.
  • Responding to a customer or correspondence from the recipient within the previous six (6) months.
  • Sending to an employee or individual associated with your business like a consultant or franchisee.
  • Attempting to enforce a legal right or court order.
  • Sending a message that will be opened or accessed in a foreign country, including the United States, China, and the majority of Europe. (For the complete list of the 116 CASL exempted countries, please visit this website
  • Sending on behalf of a charity or political organization for the purposes of raising funds and soliciting contributions (yes, this is allowed under the law).
  • Providing information about a warranty, recall, safety or security about a product or service purchased or used by a recipient.
  • Providing information about an ongoing use, purchase, subscription, membership, account, loan, or other ongoing relationship.
  • Delivering product updates or upgrades.
  • Sending a single email to a recipient who does not know you, but on the basis of a referral, if you disclose the full name of the person who made the referral. In addition, the person who made the referral can be a family member or have a personal or business relationship with the recipient to whom you are sending.

If you do not meet any of the above criteria, then consent is required.

Consent can be implied in the following situations:

  • The recipient has within the previous 24 months purchased a product, service, or made some other business deal with you, been a party to a contract with you, or has had a membership with your organization.
  • You are either a registered charity or political organization and the recipient has made a donation or gift, volunteered for, or attended a meeting organized by you.
  • The message sent is related to the recipient’s professional or official role, and the recipient has not told you or published that they don’t want to receive unsolicited messages, and the recipient has either directly given you their address or has conspicuously published it.

If you do not meet any of the above criteria, then you must obtain express consent before you can send.

Express Consent can be obtained only by giving the recipient:

  • A clear and concise description of your purpose in obtaining their consent (tell them what you will be sending).
  • Your name.
  • Both the physical mailing address and either a telephone number, email address or web address of the person seeking consent or the person on whose behalf it is sought.
  • A statement that the recipient may unsubscribe at any time.

A few more requirements:

  • If you are seeking consent on behalf of someone else, you must identify specifically who is seeking the consent and on whose behalf it is being sought (if that someone else is unknown, be as specific as possible).
  • IF YOU HAVE A CHECK BOX, THE DEFAULT MUST NOT BE PRE-SET TO GIVE PERMISSION. The recipient must actually check the box or click the button.
  • You must retain a record of all of the above.
  • Any actual messages you send must also include:
  • Your name
  • If you are sending on someone else’s behalf, that person’s name.
  • Your physical mailing address and either your telephone number, email address or web address, or that belonging to the person on whose behalf you are sending.
  • An unsubscribe mechanism that works by either allowing the recipient to send a reply message or click on a link, that option remains open for at least sixty (60) days from receipt of that message, and once exercised is effective within ten (10) days.

So that’s the word on CASL. One thing we do want to make clear, though, is that our Terms of Use and Acceptable Use Policy may have stricter requirements than what the law requires so be sure to check those out. If you have specific questions about CASL or your compliance with it you may wish to speak with a professional familiar in the area (i.e. and attorney or the like.)