Canada’s Anti-Spam Legislation (CASL) & what it means for your business

By now you’ve likely heard about the new CASL (Canada’s Anti-Spam Legislation) law, which took effect July 1st. There’s been a lot of talk about how this may or may not affect small businesses in particular, as email marketing is a large part of their overall digital marketing strategy. So what exactly does the new CASL mean to your business?

First a bit of background on CASL…

CASL 2014

When we first heard about CASL back in 2014, we were granted what they called a ‘transition period’ from July 1, 2014 — July 1, 2017, which basically gave us all three years to figure out how to implement new procedures so as not to violate the law. The rules were a little more lax during those three years. Basically that meant that Canadians could email Canadian businesses without penalty if they could prove the business had given “implied consent.” All that meant was that if you could find an email address online (published on their website, for example), then you could send a message. By publicly displaying an email address on a website, you’re giving “implied consent.”

CASL 2017

Now, post July 1, 2017, the rules are more strict. Frankly, in my opinion, too strict. Here are the new 2017 CASL rules:

You can only send email messages to recipients:

• that have already opted in with “express consent” — in plain English that means they’ve opted in somewhere on your website — or
• whose implied consent is currently valid under CASL — these are the folks that have purchased from you within the past 24 months, or who have inquired about your services within six months.

Here are the issues I see with this…

Small businesses are now under the gun to convert prospects into customers within six months. After that, they’re no longer allowed to communicate digitally without getting renewed consent. But what if your sales lead time is longer than six months?

The second issue is that small businesses are now having to find new ways to track all their prospects and customers down to the day they first made contact. That’s a lot of extra busy work to put on small businesses who are already bogged down with time-consuming administrative tasks. The CRTC (Canadian Radio-television and Telecommunications Commission) offers up some unhelpful advice on what they call “good record-keeping practices”:

• identify potential non-compliance issues
• investigate and respond to consumer complaints
• identify the need for corrective actions
• demonstrate that these corrective actions were implemented
• establish a due diligence defense in the case of a violation of CASL

My third issue with this is that it’s opening up the floodgates for get-rich-quick scammers to start bringing lawsuits to those who’ve unknowingly (and likely innocently) sent them a digital message. The result? Our courts will fill up with time-wasting lawsuits, and small business owners will be crippled by legal defence fees. All that’s in addition to taking away their ability to digitally communicate with their prospects.

What about email addresses that are clearly listed on websites?

My thoughts exactly … what’s the point in having contact us pages containing names, titles and email addresses if you’re not allowed to send a message? Well, turns out you can — as long as:

• There is no statement in connection with the address that the person does not want to receive messages at that address; and
• The content of your message is relevant to the recipient’s business, role, functions, or duties in a business or official capacity.

How is the CASL enforced?

According to the CRTC , CASL is enforced by undertakings and issuing notices of violations. What did I learn after reading the undertakings?

Make sure your unsubscribe option is clear and functioning:

With respect to the “issuing notices of violations,” you’re on your own to interpret that. All I can see (for 2014–17) are companies who’ve been cited for calling numbers on the Do Not Call List (DNCL) and/or using Automatic Dialing-Announcing Devices (ADADs).

What does CASL mean for your business?

Fear of being sued perhaps. Headaches from additional tracking and paperwork. Finding time and resources to brainstorm new, effective ways to reach and communicate with your prospects — legally.

I believe the task of monitoring leads should fall on the email marketing and list management folks, like MailChimp and Aweber, to automatically alert businesses when subscribers are approaching their two year or six month due dates. At least this would give them time to send a follow up opt-in message to keep their lists clean and compliant.

What do you think? If you have a brilliant way to simplify this entire process for SMBs and corporate giants alike, I’d love to hear it!