What Canada’s Anti-Spam Legislation Means For Your Business

As a business owner, keeping consumers up-to-date with the latest offerings is crucial to your company’s survival. The problem here is that while sending an email or electronic message may appear simple and harmless on the surface, it can have disastrous results.

Canada’s Anti-Spam Legislation (CASL) requires businesses to obtain “express” or “implied” consent from the recipients of electronic messages.

This means, as a business owner, by law you’re responsible for keeping records of consent that prove you have the permission to send electronic messages. This also applies to the commercial installation and use of programs on another individual’s computing device, including his or her mobile phone.

The difference between “express” and “implied” consent is that the former is obtained when an individual signs up for your mailing list, or opts in to receive text messages from you, while the latter is obtained when the recipient has an existing relationship with your business.

This existing relationship can come in the form of a past purchase, an inquiry, a donation or gift, or volunteer work. Furthermore, under the “conspicuous publication” and “disclosure” provision, if the recipient’s contact information is published (i.e. on their website) or given to the sender (i.e. on their business card), technically you have the right to send messages—assuming that these messages relate to the recipient’s line of work.

Whereas “express” consent has no expiry date, “implied” consent is good for two years after the existing relationship first began.

Furthermore, in order for an electronic message to be compliant under Canadian law, the sender must clearly identify themselves, their organization, as well as their contact information in the message, and there must be a way for the recipient to unsubscribe from the sender.

Currently, CASL violations can result in penalties as high as $1 million per violation for individuals and $10 million for corporations (that’s right MILLION). Therefore, it’s essential that you keep a record of consent, and continually monitor for any recipients whose “implied” consent is expiring.

This can be achieved through email marketing software records which express consent when someone opts in to your mailing list; customer relationship management software that notes and tracks implied consent; as well as keeping record of signed consent forms and completed electronic forms. In addition, consider implementing CASL policies and procedures to ensure your employees are trained in its compliance.

Last year, the federal government introduced the private right of action provision which would have allowed recipients to take legal action against those who send unwanted electronic messages without consent. These damages of up to $200 for each contravention and $1 million for each day were fortunately suspended indefinitely to examine the CRTC’s scope and application, as well as compliance and enforcement. However, just because this private right of action is no longer in force, you can still suffer any penalties the CRTC could impose.

When it comes to sending emails, texts or instant messages (yes, this even applies to you Facebook!), Canada’s strict laws prevail over any marketing strategy. Luckily, with some proper precaution and understanding, keeping record of your recipients can result in a CASL compliant system made up of the most valuable clients.

For more information about Canada’s Anti-Spam Legislation, see the Canadian Radio-television and Telecommunications Commission’s website: https://crtc.gc.ca/eng/internet/anti.htm

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