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CASL is Canada's Anti-Spam Legislation. This law came into effect as of July 1st 2014. All email marketers should be ensuring that their email lists are CASL compliant.
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CASLCanada’s Anti-Spam Legislation
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• Canada's new anti-spam law was passed in December 2010 and, following a Governor in Council order, it entered into force on July 1, 2014.
• The law will help to protect Canadians while ensuring that businesses can continue to compete in the global marketplace.
• On January 15, 2015, sections of the Act related to the unsolicited installation of computer programs or software come into force.
• Three government agencies will work together to enforce the law:
• The CRTC to issue administrative monetary penalties for violations of the new anti-spam law.
• The Competition Bureau to seek administrative monetary penalties or criminal sanctions under the Competition Act.
• The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.
About the law.
When the new law is in force, it will generally prohibit the:
• sending of commercial electronic messages without the recipient's consent (permission), including messages to email addresses and social networking accounts, and text messages sent to a cell phone;
• alteration of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
• installation of computer programs without the express consent of the owner of the computer system or its agent, such as an authorized employee;
• use of false or misleading representations online in the promotion of products or services;
• collection of personal information through accessing a computer system in violation of federal law (e.g. the Criminal Code of Canada); and
• collection of electronic addresses by the use of computer programs or the use of such addresses, without permission (address harvesting).
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What is prohibited?
• Canada’s new anti-spam law was passed in December 2010 and came into effect on July 1st 2014.
• You can’t send a commercial electronic message if you don’t have at least implied consent.
• To allow businesses time to adjust, a 36-month transitional provision (beginning July 1, 2014) relating to consent requirements is included in the legislation.
• Penalties can go as high as $1 million for individuals and $10 million for businesses; however, these penalties are reserved for the most serious violations of the act. No one will be able to bring a case before the courts, including class actions, until 2017.
• Spam can now be reported to the Spam Reporting Centre.
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The law is now in effect.
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How will this Impact me?If you are sending electronic messages (CEMs) to anyone in Canada, you need to make sure that you have the consent to do so. You also need to be able to prove it.
What should I be doing now?• The government has granted businesses a 36 month
transitional period to conform to the new law. You’ll need to organize your email records and ensure that you have express or at least implied consent for every single address on your list should you need to prove it.
• If the majority of your list is implied consent through pre-existing business interactions you need to convert them to express consent before July 1st 2017.
• Put a plan in place to make sure that you are CASL-compliant.
• Your privacy policy should be clear and visible at all times.
• Honour all opt-out requests and do not use purchased lists.
• For Spam senders of “commercial electronic messages”.
• Expressly includes directors, officers, agents or mandatories of a corporation.
• Expressly includes employers of employees acting within scope of employment.
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Who needs to worry?
Express consent versus implied consent.Express Consent
Valid consent given in writing or orally
• The recipient gave you a positive or explicit indication of consent to receive commercial electronic messages.
• Your request for consent set out clearly and simply the prescribed information.
• Is not time limited and does not expire until the recipient withdraws it.
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Express consent versus implied consent. (cont’d)Implied Consent
Existing business relationship
• The recipient has made, or enquired about, a purchase or lease of goods, services, land, or interest in land, a written contract or the acceptance of a business, investment or gaming opportunity from you.
Existing non-business relationship
• You are a registered charity, a political party or a candidate, and the recipient has provided you a gift, a donation or volunteer work.
• You are a club, association or voluntary organization and the recipient is a member.
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Express consent versus implied consent. (cont’d)Implied Consent (cont’d)
Recipient’s e-mail address was conspicuously published or sent to you
• The address was disclosed without any restrictions and your message relates to the recipient’s functions or activities in a business or official capacity.
Implied consent is generally time-limited
• Typically a period of 2 years after the event that starts the relationship (e.g. purchase). For subscriptions or memberships, the period starts on the day the relationship ends.
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1. Think about WHO you are sending messages to.
a. Did they give consent? Do you have a record of this consent?
i. Did they say ‘yes, please contact me?’ii. Did they publish contact info online or did they give you a
business card? (Look closely for any ‘don’t contact’ instructions).
iii. This means no automated address generation or collecting!
b. Do you have an existing business or non-business relationship?
i. Customers, clients, associates, donors, supporters, volunteers or members from the past two years.
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Three things to think about when sending messages.
2. Think about the TYPE OF MESSAGES you’re sending.
a. Is it sent to an electronic address?
i. E.g., email, SMS, instant messaging or similar platforms.
b. Is it commercial or promotional?
i. Commercial or promotional information including marketing, sales, offers, solicitations or similar activities.
c. Ensure that no part of the message is false or misleading.
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Three things to think about when sending messages
3. Think about what YOU MUST INCLUDE.
a. Identify your name and business, the name of anyone else on whose behalf you are sending the message, and a current mailing address. Also include a phone number, email address, or web address. Ensure they are accurate and valid for a minimum of 60 days after sending the message.
b. Include details on how to unsubscribe
• In each message.• Action every unsubscribe request within 10 days or less
and at no cost to the recipient.
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Three things to think about when sending messages
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MYTH: I won’t be able to use email or my current email list to promote my products and services.
FACT: You can continue to use email if you have express or implied consent from recipients. During the 36-
month transition period, you can continue to use your current email list if:
• you have previously provided your products or services to them and
• they haven't told you to stop.
MYTH: It’s illegal to send promotional emails, text or instant messages, or to post promotional information on social media.
FACT: It is not illegal to send commercial electronic messages, but you need consent.
CASL applies to emails, text and instant messages, and any similar messages sent to electronic addresses.
CASL does not apply to promotional information you post online in places like blogs or social media..
Get the facts
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MYTH: Pre-CASL express consent is invalid.
FACT: Express consent received before July 1, 2014, remains valid and does not expire until the recipient withdraws it.
MYTH: CASL won’t stop spam from overseas.
FACT: No law will eliminate all spam, including that from overseas. CASL allows Canadian enforcement against spammers operating in Canada.
MYTH: Compliance is going to be onerous and costly for businesses.
FACT: Businesses that already comply with privacy laws and use common best practices for email marketing will require little effort to comply with CASL. The 36-month transitional provision provides time to adjust and seek express consent from pre-existing clients.
MYTH: I heard that I could be fined up to $10 million for sending an email and that there could be class actions.
FACT: There are no automatic penalties. The CRTC has a range of enforcement tools available, from
warnings to penalties (up to $1 million for individuals and $10 million for businesses).
Get the facts (cont’d)
What is PIPEDA?
• The Personal Information Protection and Electronic Documents Act (PIPEDA) sets out ground rules for how private sector organizations may collect, use or disclose personal information in the course of commercial activities.
• PIPEDA also applies the law and gives individuals the right to access and request correction of the personal information these organizations may have collected about them.
• In general, PIPEDA applies to organizations’ commercial activities in all provinces, except organizations that collect, use or disclose personal information entirely within provinces that have their own privacy laws, which have been declared substantially similar to the federal law.
• PIPEDA continues to apply to federal works, undertakings or businesses and to interprovincial or international transfers of personal information.
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• It is the American form of CASL. The acronym, CAN-SPAM derives from Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003.
• It does not require e-mailers to get permission before they send marketing messages. Instead it simply requires consumers to “opt-out” of receiving commercial emails.
• Many states supplement this with their own anti-spam laws.
What is CAN-SPAM?
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CASL has:Reach outside Canada and are subject to certain regulatory expectations and applies to messages accessed from a computer system in Canada. CASL has a higher standard for consent. Opt-in (CASL) versus Opt-out (CAN-SPAM)
Broader applicationCASL also applies to installation of pc software as well as any electronic messages.
Higher penalties for businesses who disobey the law. Maximum penalty is up to $10 million.
The Implications:• More online activities will be caught with CASL.• More activities affecting Canadians will be caught by CASL, even if
initiated outside of Canada.• More steps will be needed under CASL to communicate online.• Greater exposure to liability under CASL.
Key differences between CASL and CAN-SPAM.
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Asks For Sensitive Information• Legitimate banks and companies will never ask for your personal or
financial information in an electronic message.
Impersonation of Companies or people you know• Many criminals try to fake the appearance of well-known companies or
people that you deal with frequently. You can look for warning signs, even from senders you think you recognize.
Uses Scare Tactics• For example: They will delete your account if you do not respond.
Asks for money in advance
Seems too good to be true• You won a trip.• You need to be careful with prizes and an unexpected offer on money.
Whatever you do do not give out your personal information.
Worried it’s Spam? 5 things to look for:
• Update your website and internal Privacy policy.• Update forms and procedures that document consent.• Address unsubscribe requirements and timeframes.• Update existing customer service processes.• Include information/training for employees, management and board of
directors.• Address third-party contract requirements (limitation of liability,
representations and warranties), including address rental.• Consider insurance.
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Next steps
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CASL- intended to deter the most damaging and deceptive forms of spam, such as identity theft, phishing and spyware, from occurring in Canada and to help drive spammers out of Canada.
Spam- send the same message indiscriminately to large numbers of recipients on the Internet.
CEMs- Commercial electronic messages.
Opt-in- To choose to participate in something.
Opt-out- To choose not to participate in something.
CAN-SPAM- The CAN-SPAM Act of 2003, signed into law by President George W. Bush on December 16, 2003, establishes the United States' first national standards for the sending of commercial e-mail and requires the Federal Trade Commission to enforce its provisions.
Anti-spam protections- Refers to any software, hardware, or process that is used to combat the proliferations of spam or to keep spam from entering a system.
Consent- Is agreement or permission to do or allow something.
Disclosure- The action of making new or secret information known.
Glossary
Privacy policy- A privacy policy is a statement or a legal document that discloses some or all of the ways a party gathers, uses, discloses and manages a customer information.
Marketing message- key concept in the different definitions of marketing communication.
PIPEDA- The Personal Information Protection and Electronic Documents Act (PIPEDA) sets out rules for how private sector organizations may collect, use or disclose personal information.
Unsolicited online communications- Not looked for or requested; unsought.
Malware- software that is intended to damage or disable computers and computer systems.
Spyware- software that enables a user to obtain covert information about another's computer activities by transmitting data covertly from their hard drive.
Botnets- a network of private computers infected with malicious software and controlled as a group without the owners' knowledge, e.g., to send spam messages.
Glossary Cont’d.
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Canada’s anti-spam legislation (CASL) - interpretation and opinion:http://www.klick.com/health/news/blog/ecrm/canadas-anti-spam-law-casl-interpretation-and-opinion/
CASL coming into force:http://blog.cakemail.com/casl-coming-force-july-1st-2014/
CASL FAQ for email marketers:http://web01.inboxmarketer.com/casl_faq.asp
More information?
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Become king of CASL:https://www.youtube.com/watch?v=Rmq1uf2kwvY
King of CASL:https://www.youtube.com/watch?v=_M_81xKzVaU
Anti-spam legislationhttps://www.youtube.com/watch?v=V84j-EuLamU
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Videos on CASL
Interested in more information on CASL or any of our other marketing and advertising services? Feel free to contact us.
RAVEN5 Ltd.461 North Service Rd. W, Unit B31Oakville, ON, L6M 2V5
1 855 543 8345
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