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Canadian Anti-Spam Legislation: A Quick & Dirty Guide

Everything You Need to Know About The Canadian Anti-Spam Legislation (CASL)

The Canadian anti-spam legislation, revised on July 1, 2014, allows the Canadian Radio-television and Telecommunications Commission (CRTC) to officially fine businesses and individuals for sending Canadians electronic communications without consent. The fines can range up to $10 million dollars for companies and $1 million for individual offenders.

As a business owner, it’s crucial that you note that it’s not only email marketing communications that need to be considered, but all “commercial electronic messages” (CEM). Social media messaging and text messaging are not exempt, and as a result, the CASL has sent many businesses scurrying to meet the credentials. To date, companies report having spent thousands to tens of thousands of dollars bringing their systems into compliance.

CASL Criteria

In addition to needing to obtain consent, businesses also need to make sure it is clear that their messages are coming from them, and they must also make sure there is an unsubscribe option. So, the three main criteria all businesses must meet are: Consent, Identification and the ability to Unsubscribe.

It doesn’t sound like much, and for some companies, it’s not. In fact, an ‘unsubscribe’ option has been required for email communications for years. Now, however, the CTRC wants businesses to know failure to comply will result in action.

The Grace Period

Despite the fact the CTRC gave dozens of information sessions intended to enlighten businesses about the new changes to legislation, an in-house survey suggests that the vast majority of individual and businesses aren’t totally aware of the rules. Moreover, almost 2/3 of businesses have done nothing to comply with the new standards.

Thankfully, there is a three year grace period in which companies will not be penalized as long as they can prove they have maintained a commercial relationship with the recipients in the last two years. Known as ‘implied consent’, this measure should be viewed as what it is: an opportunity to implement the chances, NOT a loop hole. You are still going to need get your ducks in a row. ‘Explicit consent’ is now the order of the day.

After three years, ‘private right of action’ takes effect, meaning a business that sends unsolicited or excessive communications can be sued by anyone. At the moment, individuals can report non-compliance to the Spam Reporting Centre at fightspam.gc.ca.

Potential Issues

EXPENSE: The new CASL has definitely got some backs up. In addition to the expense of updates, upgrades and even legal fees, there are other less measurable expenses, like the time spent trying to get consent from slow-responding recipients – time that could have been spent on more profitable endeavours like research and development.

SPAM DENIAL: According to Industry Canada, the cost of spam to the Canadian economy is upwards of $3 billion a year. Spam often results in harassment, fraud, viruses, and even identity theft. In fact, almost 70% of email is spam. Of course, most businesses simply do not view their emails as spam and will therefore not take the necessary steps to meet compliance. It’s understandable. After all, most businesses communicate with customers simply to build a strong relationship – they’re not trying to push pills for erectile dysfunction or posing as one of your pals stranded in the Middle East somewhere and in desperate need for cash. They are legit and they have legit offers.

REACH: Businesses who are aware of the new legislation may not be aware of its depth and breadth. As mentioned, the Canadian Anti-Spam Laws apply to all CEMs, which includes messages sent to social media inboxes. However, it does not apply to messages posted on Facebook walls or Twitter feeds.

THE EXCEPTIONS: There are a (perhaps confusing) number of exceptions to this law, including emails by charities and political parties for fundraising, the initial email after third party referrals, emails that respond to customer questions or complaints and emails between businesses.

INTERNATIONAL IMPLICATIONS: When it comes to spam coming from outside Canada, the CTRC will work with international agencies to enforce legislation. However, there is no clear plan in place.

ANTI-SPAM SPAM: A lot of people feel spammed by the anti-spam emails, so they’re slow to respond or totally delinquent in their response to the compliance emails. If you do not receive a response right away, try sending another email as a reminder later on when the tidal wave of emails (and ensuing frustration) has subsided. The key is to get that explicit consent within the grace period.

The CRTC’s chief compliance and enforcement officer, Manon Bombardier, notes, “The enforcement approach that the CRTC is taking is not meant to punish.” The main purpose of CASL, she says, is to “make the online environment more secure for Canadians by addressing the more severe cases.” There is a realistic understanding that this won’t initiate a cease-fire for all unwanted communications, but it will help drastically reduce their occurrence.

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Haven’t made the necessary changes yet? Take heart. Not every violation will result in a fine, but offenders can expect to receive warnings to bring them into compliance.

Like it or not, this new legislation is here and in place, so you need to start taking it seriously. If you need help organizing a CASL task force, contact our communications experts.