Editor’s Note: This information is educational material written by marketers for marketers. A lawyer has been consulted in the preparation of this material, but you should not treat this material as legal advice and should consult your own legal counsel for affirmation.
Under the Canadian Anti-Spam Law (CASL), as of July 1, 2014, you can’t send a commercial electronic message (CEM) to a person unless:
- You meet exemptions under the Act, or
- You have express consent, or
- You have implied consent
Let’s break this down further.
The government states this on their website, as a way to determine what a CEM is: “Is one of the purposes to encourage the recipient to participate in commercial activity?”
In terms of exemptions, there are several under the act as a whole, but the most common one is having a ‘personal relationship’ with the recipient.
The following are qualifiers that help determine what a ‘personal relationship’ is:
- You have a parent-child relationship
- You’ve had direct, voluntary, two-way communication
- You share interests
- You’ve met in person
As stated, if you don’t meet an exemption such as a personal relationship with the recipient, you require implied or express consent to send the recipient a CEM.
Express consent would include someone who has affirmatively subscribed to your email correspondence. Verbal or digital affirmation is fine, but note that the business is responsible to prove the express consent, not the recipient. If you receive express consent, you can send that person CEMs indefinitely, unless or until they unsubscribe.
Implied consent would include past customers or inquiries for your services (leads). You are given two years from the date of last transaction for past customers and six months from the date the lead is generated to send this type of recipient CEMs.
The two-year and six-month limitations can be extended if during the given period they buy more goods or services from you (re-activates the two year rule), you enter into a personal relationship, or the recipient provides express consent.
Finally, and perhaps most important for many, CASL has been gracious to allow a three-year transition rule (section 66), in which you have three years from July 1, 2014, to obtain express consent from anyone with whom you have an ‘existing business relationship’ and “the relationship includes the communication between [you and them] of commercial electronic messages [CEMs].” According to section 10(10) of the Act, people you have an ‘existing business relationship’ with would include people who previously inquired about your goods and services or have purchased your goods and services.
tbk Creative has written a bulleted e-guide for marketers on this topic, entitled ’33 Point Check List Every Marketer Must Know About the Canadian Anti-Spam Law (CASL).’
The e-guide covers items such as:
- What must be in your consent messages
- What must be present on your webpage lead acquisition and contact us forms
- When to have a subscription check-box and when it’s not required on your forms
- When you must use unsubscribe mechanisms in your emails and when you’re not required (it’s broader than you may think),
- How telephone and faxing is governed under CASL
- And much more.