Posted by Rob Ropars on December 11th, 2013
On Wednesday, December 4, 2013, Industry Canada published the final regulations1 for Canada’s Anti-Spam Legislation (CASL). At the same time, they announced July 1, 2014 as the date when CASL will take effect. This means we as marketers, both inside and outside of Canada, must prepare in the roughly seven months before it’s fully in effect.
Longtime readers of Digital Spin will know I’ve been writing about CASL since it was first announced. My goal is to keep everyone aware of key developments and provide top-level updates to help explain things as simply as possible. This is the single most restrictive law thus far passed by any nation, and hopefully it won’t be the start of a trend. I’m very sure countries around the world will be watching closely to see how this plays out.
There have been many meetings over the last few years between the various government agencies and the marketing industry. The goals were clarification of what are seen as somewhat ambiguous elements in CASL, as well as attempting to encourage revisions to particularly onerous portions of the law.
Here are the top-level items:
- CASL will come into effect in phases
- The majority of the law on July 1, 2014
- Rules related to computer programs on January 15, 2015
- Private right of action on July 1, 2017
- Industry Canada has provided direction on several CASL issues
- Definition of a commercial electronic message (CEM)
- Application of CASL to “express consent” obtain before the law is in force
- Application of CASL to IP addresses and cookies
- The interaction between the unsubscribe requirement and “implied consent”
- Several new exceptions have been added:
- “Closed platforms” such as Blackberry Messenger and social media networks
- Limited-access accounts (where organizations interact directly with recipients as in “online banking”)
- Messages sent to foreign persons
- Fundraising by charities and political parties
I will focus on two of the most important issues to us: CEMs and marketing to addresses currently in our databases. Industry Canada has apparently heard our concerns and clarified things in what appears to be a far more reasonable approach than was first suggested. [Emphasis in text is mine.]
CEMs – Portions of CASL appeared to imply that transactional messages could by interpreted as CEMs. Industry Canada now states “…if the message involves a pre-existing commercial relationship or activity, and provides additional information, clarification or completes the transaction involving a commercial activity that is already underway, it would not be considered a CEM since, rather than promoting commercial activity, it carries out that activity.”
They also note that “…the mere fact that a message involves commercial activity, hyperlinks to a person’s website, or business related electronic addressing information does not make it a CEM under the Act if none of the purpose is to encourage the recipient [to participate] in additional commercial activity.”
Application of CASL to existing express consent – Industry Canada now indicates that “express consent” received before CASL comes into force, assuming it is compliant with the Personal Information Protection and Electronic Documents Act (PIPEDA), is considered compliant with CASL. PIPEDA has been interpreted to require express consent to use personal information for marketing reasons. So you still need to have documentation of some kind verifying a person opted in to hear from you. Those pre-checked opt-in boxes, long a terrible idea and contrary to marketing best practices, is definitely forbidden under this law.
It is important that marketers (particularly those in Canada, but this law also covers sending emails into Canada) seek legal counsel as soon as possible. Now that both the law and the regulations are final, as well as how they’ll be interpreted/enforced, the clock is ticking.
I’m pleased to see that transactional messages have been given some breathing room. The early drafts we’ve seen appeared to be creating a situation where a business could lose a communication channel after a purchase/order. The need to have express consent retroactively is still going to be difficult for some marketers. But those who have existing records that are PIPEDA-compliant should have more breathing room now.
Going forward I will continue to monitor updates on the law and anticipated enforcement by both Industry Canada and the Canadian Radio-television and Telecommunications Commission (CRTC). In the meantime, I hope this post has been helpful and you’ll find a variety of links about the announcement below for further reading.
NOTE: This blog post is provided for informational purposes only, and is not intended as legal advice. Please consult your own counsel for interpretation and direction.