Silverpop - Keeping Our Eye on CASL (Canada’s Anti-Spam Legislation)
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Keeping Our Eye on CASL (Canada’s Anti-Spam Legislation)

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by: Stephen Guerra (@StephenGuerra)
25 October 2011

In December of 2010 Canada passed new legislation that governs the use of email for marketing (commercial) purposes. There have been a lot of interesting developments since then, and with the period for public comments on the legislation having ended last month, I thought this would be a good time to talk about how the regulations are shaping up and how they’ll impact digital marketers. Here’s a guide to what you need to know:

CASL: A Recap
Canada’s anti-spam law has not yet come into effect, and it’s uncertain exactly when it will do so, but it’s likely to be in early 2012. When the law was originally passed, it stipulated many requirements for commercial electronic message senders and also established areas to be further defined by regulatory agencies, including:

  • The form that consent must take
  • Identifying information that must be provided by the sender or someone seeking consent to send
  • The form of a Commercial Electronic Message

Silverpop’s Loren McDonald, with Michael Fekete from the firm Osler, Hoskin & Harcourt, explored these initial requirements in our Webinar Why Canada's New Anti-Spam Law Matters to All Email Marketers.

Since then, Canada has issued proposed regulations and established a period for public comments that ended on Sept. 7, 2011. Industry groups and others have provided considerable feedback, and hopefully some of these regulations will be improved. While there will likely be changes to the proposed regulations, understanding them now can help you prepare for the final form. Here’s a summary of these proposed regulations, along with some of our analysis.

Sender Identification
The proposed regulations are quite detailed here and, much like CAN-SPAM initially tried to do, want all senders clearly identified. Senders may be all of those who have commercial content in the message and those who are responsible for transmission. Information which must be included:

  • Name of sender and others on whose behalf the message is sent
  • If multiple parties are involved, the role of each (who’s the sender, and who it’s being sent for)
  • Business names of senders
  • Contact information (physical and mailing address, telephone number, email address, Web address, any other electronic addresses)

This information must be provided within the body of the message if practical or, if not, via a link.

What marketers need to know: These requirements aren’t too onerous but would increase the amount of clutter within the body of messages. In addition, having multiple senders with full contact information listed in a message will likely cause recipients to be confused. The final point seems to be aimed at commercial messages such as text messages that are too short to contain all this information.

The proposed regulations briefly cover unsubscribe mechanisms, with only the two requirements below added to the existing law:

  • Unsubscribe option must be presented clearly and prominently
  • Able to be performed in no more than two clicks or another method of equivalent efficiency

What marketers need to know: The “clearly and prominently” clause isn’t cause for much concern, but the second requirement has questions that need to be resolved. For example, if a message takes a recipient to a preference form with a click on a link, and the recipient must select an “Opt out of all” box and then click a submit button, does this three-click process violate the requirement?

Request for Consent
CASL requires permission (express or implied) in order to send commercial electronic messages. The proposed regulations are:

  • Consent must be in writing
  • Consent forms must include:
    • Name of person seeking consent and name of person on whose behalf permission is being sought
    • Clear identification of who is who if the two are different
    • Business names
    • Contact Information for both parties:
      • Physical and mailing address
      • Telephone number
      • Email address
      • Web address
      • Any other electronic address
    • Statement that consent can be withdrawn using any of the above contact methods

What marketers need to know: There are two major concerns I have here. First, requiring consent in writing may cause challenges for many valid permission tactics, including obtaining permission through conversations with call center representatives and collection of business cards at trade shows. Second, since the proposed regulations require senders to honor opt-out requests through all these contact methods, marketers will need to establish procedures to monitor these channels for opt-outs and process those requests promptly.

Stay Tuned
None of these regulations are final, and many of the concerns raised here were discussed by those who provided comments on the proposed regulations. It’s important to be aware of both the nature of the regulations in general (Canada is willing to take a fairly tough stance) and the compliance ramifications of the proposed regulations as they currently stand.

Silverpop does not provide legal guidance and presents this information as a discussion of general legislation issues and not as legal advice.  Please consult your attorney for legislation compliance guidance.


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