If you read our previous blog, “Everything You Need to Know about CASL (Canada’s Anti-Spam Legislation)”, you probably already have a solid understanding of the CASL changes that came into place as of July 1, 2017.
As a refresher, we’ve invited lawyer Geoff Costeloe from Prowse Chowne LLP to help our readers ensure their businesses are CASL compliant now that the three-year grace period is over. Take it away, Geoff!
You may be aware that the revised Canada’s Anti-Spam Legislation (CASL) came into effect on July 1, 2017. CASL presents numerous changes to several pre-existing Acts in order to combat spam emails, which by some estimates, amount to almost 1 trillion emails per day. While most Canadians will agree that making life difficult for these mass ‘spammers’ is a worthwhile goal, many Canadian businesses who keep in touch with their customers electronically may be caught up in the updated legislation.
If you are one of these businesses, you need to be aware of your obligations under the law and make sure that you are complying as the penalties are stiff. This article will attempt to help you ensure that you are in compliance.
CASL governs the sending of “commercial electronic messages” (CEMs) which covers business related emails, text messages, and almost any other electronic form of communication. Under CASL you can now only send CEMs to clients under two situations:
- You have received the customer’s expressed consent to send them CEMs; or
- The CEM is subject to a statutory exemption.
There are a number of technical exemptions in the legislation including the following:
- Communication with clients outside of Canada (must comply with the anti-spam law of the client’s country);
- Communication with businesses that your business has a preexisting relationship with;
- Communications in response to complaints, inquiries, or requests;
- Communications sent due to a legal obligation.
The most relevant to businesses are the exemptions relating to inquiries from the customer. If a customer has made a business inquiry (such as requesting a quote) then you are entitled to follow up with that customer in regards to that inquiry only. Once that inquiry has been answered, your business will require the expressed consent of the client to continue soliciting to them via CEMs.
If an exemption does not apply to your CEM, you will need expressed consent from the customer in order to send them electronic messages. The best way to think about expressed consent is that the customer needs to “opt-in” to receiving CEMs from your business. This is different from implied consent because it requires the customer to acknowledge via a checkbox on a paper or electronic form, that they are willing to receive CEMs from your business. Just because a customer gives you their email address does not give you the ability to add them to a distribution list and send them emails.
Opt-in Clause Example
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ABC Corporation Inc. | 100 124th Street | Edmonton, Alberta, T1T1T1 |
www.abccompany.ca | 1-780-111-1111
CASL Opt-in Requirements
The important parts of the CASL requirements are all listed in the example above. This includes:
- Information about your business, including its mailing address;
- An explanation of how a customer would unsubscribe (or opt out at a later time);
- A clear description of what the customer will be receiving if they ‘opt in’.
It is important to note that the choice of a client to ‘opt in’ is independent of other offers or prompts from your business. For example, a customer must be able to complete an online purchase or request without being forced to ‘opt in’ to e-mails. If they are required to ‘opt in’ then they are no longer making that choice freely, which puts your business on the wrong side of the new rules.
Complying with CASL
Remember, under the new CASL rules, just because a client provides you with their email address does not give you permission to communicate with them (outside of the exceptions).
If you have further questions on how you can ensure strong lines of marketing and communication with your customers and still be onside of the updated CASL rules, please contact your business lawyer.