After July 1st you cannot use CEM’s to gain express consent. That means you can’t email/text people to ask them if you can email/text them. It is considered spam. You can reach out by direct mail or telephone, but note that using the telephone may be considered telemarketing (another area regulated by the CRTC) and the oral consent you would get while allowed, is hard to prove).
There is a 3 year grace period where your existing contacts are considered implied (see Implied Consent below). However, after three years, you must have express consent or retire those contacts from your list.
TYPES OF CONSENT
Express Consent – This is the golden ticket. This is what you seek. Express consent lasts forever or until the recipient unsubscribes from your communications.
Implied Consent – This requires accurate tracking as it is time limited (typically to two years) and gives you limited options to gain long term express consent.
- You have an existing business relationship or an existing non-business relationship (the latter applies mostly to charities, membership organizations) with the recipient
- The recipient has conspicuously published their electronic address (like on a web page or their email signature)
- The recipient has disclosed to the sender their electronic address (think business card)
GETTING EXPRESS CONSENT
There are some companies who have been sending out requests already to get consent. Unfortunately they haven’t included all the necessary CASL requirements.
Some good news.
For those of you that can show some sort of consent from prior contacts (e.g. the recipient typed their email address into a field to indicate consent, the recipient had to click a link in order to verify they want to receive email communications from you, the recipient checked a box confirming consent), CASL has said they will honour these even though some of the elements below might be missing.
Going forward however you will need to include all the following into your consent form:
- The purpose for which consent is being sought. E.g. ask the recipient’s consent to receive commercial emails from {company name}.
- The name of the sender , the business name, and/or the name of the person on whose behalf the message is sent (if any)
- The mailing address, and one of the following:
-
- a telephone number providing access to an agent or voice messaging system,
- an email address or
- a web address of the person/company seeking consent
- A statement that the person can withdraw their consent at any time
- An unsubscribe mechanism
- If you are using a third party (e.g. Agency or Email Software Providers like Mail Chimp or Constant Contact), then this information has to be included as well.
You CANNOT:
- Add a recipient to a list and simply say they have the right to unsubscribe (ie. Negative opt-in).
- Have a pre-checked box that outlines consent to receive emails. Recipients must check the box themselves.
- Bundle electronic communication consent with the sale of a product or service. There must be one option to purchase and a second option to receive company emails.
- Review your email lists. Do you already have proof of Express consent?
- If not, decide which ones are worth your time and money to pursue. If someone hasn’t been actively communicating to your emails for years, perhaps it’s not worth it.
- For the ones you wish to pursue, draft the correct consent form (see Getting Express Consent above and the links to Examples of Approved Express Consent forms at the end of this article) and approach them prior to July 1st, 2014.
- If you are using email software, beware of their rules for getting consent (double opt-in) from existing contacts. Sometimes the software will ban you from reaching out to that person more than once.
- Keep better data on your contacts. Do you record them in a CRM and more importantly can you prove express consent going forward?
- If you have employees, educate them on the spam laws. Remember you could be held responsible if they violate the legislation. Consider setting up policies around usage of company email addresses
RECOMMENDATIONS TO PREPARE FOR CASL NOW
- Review your email lists. Do you already have proof of Express consent?
- If not, decide which ones are worth your time and money to pursue. If someone hasn’t been actively communicating to your emails for years, perhaps it’s not worth it.
- For the ones you wish to pursue, draft the correct consent form (see Getting Express Consent above and the links to Examples of Approved Express Consent forms at the end of this article) and approach them prior to July 1st, 2014.
- If you are using email software, beware of their rules for getting consent (double opt-in) from existing contacts. Sometimes the software will ban you from reaching out to that person more than once.
- Keep better data on your contacts. Do you record them in a CRM and more importantly can you prove express consent going forward?
- If you have employees, educate them on the spam laws. Remember you could be held responsible if they violate the legislation. Consider setting up policies around usage of company email addresses
SOME HELPFUL RESOURCES ON CASL
Industry Canada presentation on Canada’s Anti-Spam Legislation and Regulations –
This presentation is a high level overview of what the Act applies to and what it requires, so that business may understand their obligations.
Are your e-promotions ready for the new anti-spam law?
CRTC 2012-548 & CRTC 2012-549 – Examples of Approved Express Consent forms.
CRTC’s Anti-Spam Centre – As the CRTC will be regulating the legislation, this site is useful to see their interpretation and the approach they plan to take.
Bennett Jones Anti-Spam Learning Centre – Bennett Jones has lawyers who are specializing in Anti-Spam. Their Anti-Spam Learning Centre is very helpful. If you require more legal advice, visit this link as well.
Source: Hubspot 2
