The Canadian Anti-Spam Law (CASL) was passed with the aim of targeting unsolicited electronic commercial messages, including marketing messages sent via email, text message, instant message, and social media.

This law will greatly impact legitimate email marketers.The Canadian government is expected to begin enforcing CASL in 2014. We anticipate a formal announcement of that effective date in the coming months.

The delay for this law to take effect gives marketers time to comply with significant new requirements that will dramatically impact outbound email and text message marketing now and in the future; however, smart marketers are starting to address policies and procedures now that will greatly benefit how they may market in the coming months.

Although the law could still change before it is fully enforced in 2014, substantial changes are unlikely. As it stands today, CASL creates three significant new challenges for email marketers.

1) CASL creates an opt-in, rather than opt-out, environment. Unlike the United States’ CAN-SPAM Act, email marketers under CASL must obtain consent before sending a consumer any electronic commercial message, even if that message is a simply a coupon included with a customer service communication. Furthermore, consent must be affirmative; pre-checked boxes on a check-out screen don’t count.

The burden of proof for this requirement lies with the sender – consumers don’t have to prove they never provided consent, marketers must provide a complete record of when and how they obtained that consent.

Fines for breaching this requirement are steep: up to $10 million per company and $1 million for individuals.

2) CASL includes new requirements for marketers and vendors to identify themselves. Both the sender of the message and any other party involved in the transmission of that message, such as affiliates, must be identified. Every company will have work out for itself which messages require which disclosures from which of the outbound marketing vendors it uses.

3) CASL’s requirements for allowing consumer to unsubscribe or opt-out of email marketing communications also raise the bar for email marketers. In addition to every message giving consumers the opportunity to unsubscribe, CASL requires that process by clear, prominent, and be “readily performed…without delay”.

CASL’s Broad Scope and Deliberate Vagueness Requires Expert Support

This is a good example of where the language of this law is still vague. While the regulatory agencies are working to ensure the law is clear to legitimate marketers, CASL was written broadly enough to encompass all commercial electronic messages, which include text message marketing and future electronic marketing channels, and to empower regulators to enforce the law to its fullest extent.

Fortunately, businesses have a grace period of up to three years from the official date of enforcement for CASL during which time they can ask for and receive consent from consumers who are already receiving commercial electronic messages in order to continue sending those messages to them.

Gryphon has a number of resources available for businesses that need to comply with CASL:

  • Core Email Clearinghouse centralizes email marketing communications across an enterprise as well as collects opt-ins and opt-outs to create a record and ensure compliance.
  • Core CRM provides simple, centralized compliance across all your marketing channels.
  • Marketing Privacy Consultants can provide customized support for your business and support in obtaining consent legally.
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