Canada’s Anti Spam Law Act(full HTML Version)
will be enforced July 1, 2017

How many times have you jotted down an email address and sent someone a note after chatting with them? Perhaps you took a business card, scribbled a reminder about the conversation on the back, and later sent them follow-up information. Perhaps someone asked you a dozen questions, so later you added them to your newsletter distribution list knowing that you provide lots of the answers they want. Maybe you know someone who provides a service someone needs, and you have offered to connect them. Maybe you’ve got a lot of people on your distribution list because they chose a free membership that includes a newsletter, or clicked through from a social media post. As of July 1st, all of these encounters are considered insufficient justification for sending anyone more than a single email or text contact, unless they have explicitly agreed to that contact.

You might wonder what exactly it takes to have explicit agreement, given that the person has actually provided their email address or mobile number – surely that’s enough? Well, not any more. As of July 1, 2017 , CASL, you can send ONE business email or text to a contact, but no more without a response.

Everyone who sends email for any reason other than personal communication needs to understand the changes to email laws in Canada starting July 1, 2017. If you send newsletters, use email for business or as a service provider, communicate with clients, do fundraising, or generally do anything beyond chatting with friends, then you need to understand what is happening. New email regulations give anyone – even those cranky people who enjoy complaining – the power to label your email as ‘unsolicited’ and get you labeled a spammer, so let’s be really clear about the requirements to avoid this nasty result. The most important requirement is that you, as the sender of the email, must be able to prove that the email sent complied with the regulations.

I’m providing my interpretation of the rules, with the proviso that official interpretations will be emerging in the coming months as actual cases solidify government policies.

Access the full text of the government-issued CASL Act.

Previously posted, if you’re a fundraiser, not for profit, or organization that is not selling anything. The rules are quite different. Exemptions relate to section 6. You’ll probably want this information if you’re selling chocolate bars or raffle tickets as a fundraiser, too. (And beware of recommending purchasing from your sponsors!)

Here is the quick checklist (with details below) for business emails including newsletters and social media individual messages:

• You may send an email to someone with whom you have an existing business relationship that has been active in the last 2 years.
• You may send an email to someone who has explicitly agreed to receive an email from you, your business or organization. The rules for agreement are strict: click-through or entering their email at a site is not enough. An agreement to receive email must be recorded so that you can establish your right to send an email. Double opt-in is your friend.
• I recommend that you have a signature file that includes the information required by CASL for business contacts. Every email or newsletter that is not part of an ongoing business interaction must contain very specific identifying information and instructions allowing the receiver to unsubscribe, and the included data and unsubscribe function must be valid for 60 days after the contact. If you’re planning a move or other change that affects your contact data, make sure that you’ve updated your signature file at least 60 days prior to the changes coming into effect.

The required identifying information includes:

• your name
• your business name
• the name of anyone else on whose behalf you are sending the message
• a current mailing address
• either a phone number, email address or hyperlink to a web address. This data must be accurate and valid for 60 days after sending the message.

Why is the government being so strict?

We’re all tired of the prince who just needs some money in order to send you billions of dollars, and the various bargain price prescription drug sales and the creepy ‘your profile attracted me’ spammers. I keep thinking that we’ve seen it all, and yet I continually hear about people who have been financially or emotionally stung by spammers, and that means criminals are motivated to continue trying to take advantage.

Unsolicited commercial electronic messages, known as spam, have become a significant social and economic issue and a drain on the business and personal productivity of Canadians.[clickToTweet tweet=”Spam costs the Canadian economy more than $3 billion per year.~Fightspam.gc.ca” quote=”It is estimated that spam costs the Canadian economy more than $3 billion per year. ~Fightspam.gc.ca” theme=”style5″]

If the scams weren’t bad enough, people are frustrated by charges for texts and data as their smart phones are bombarded by junk, both malicious and opportunist. So, bottom line, if someone has not specifically agreed to be on your distribution list and receive emails from you, whether they’re newsletters or direct individual emails, then you are going to be labeled a spammer – which can only be bad for business.

CASL regulations came into effect July 1, 2014, with a 3 year grace period to allow businesses to adjust. These regulations will be enforced starting July 1, 2017. People are complaining: since 2015 over 200,000 complaints have been received at spam@fightspam.gc.ca.

It’s frustrating that we’re bearing the burden of this legislature, which was put in place in an effort to protect the public from harassment. Like many new laws, the challenge has been in the transition, as both business people and the public get used to the changes. The priorities are in two areas: explicit agreement and unsubscribing.

Explicit Agreement

Lots of business people build their distribution lists without a specific commercial intent, with the awareness that a new client could be a ‘friend of a friend.’ The CASL regulations require a new level of caution as ‘commercial intent’ is still open to interpretation. It’s easy to argue that you wouldn’t have a distribution list if you weren’t doing business.

If it’s not enough for someone to give you their email address, what does it take to have ‘explicit agreement?’  Services such as AWeber, Constant Contact, Mailchimp and Infusionsoft are providing a double opt-in, which automatically covers requirements. If someone enters their email address, it is necessary that they both specifically acknowledge that they are willing to receive emails, and that you keep a record of that agreement. The CASL regulations are quite clear that the onus is on the business to establish that the end-receiver agreed to receive the email.

What about in-person meets? It’s not enough for someone to give you their card or email address, they must specifically agree to receive emails from you, or to be put on a newsletter distribution list. There have been days that I’ve considered adding a note on the back of my business card that says “Don’t add me to any lists” – this new legislation should make that note obsolete, and anyone that gets added to a list without their express consent could report unsolicited emails. Since the onus is on you, the sender, make sure that you have a record of how you received the agreement to receive emails with the contact.

You may send ONE email or text to a contact, but without a reply, any further email or text contact can be reported as unsolicited. There are rules that allow contact if you’re friends or family. Be careful with referrals or contacts that result in a user being added to someone else’s list. 

And even if a person agrees to receive your newsletter, emails, or texts they have to have a way to stop receiving them on demand.

Unsubscribe requirements

If you are engaged in communication for business, it is appropriate for the communication to continue. For example, if you’re sending an invoice for services, the receiver can’t refuse to receive that invoice with ‘unsubscribe.’ However, people can refuse other contact, whether it’s direct emails or newsletters, by choosing to unsubscribe. CASL regulations require both that you make unsubscribing easy, free, and that you keep records of unsubscribes.

• When someone unsubscribes, all contact must cease within 10 days.
• The process provided for the user to unsubscribe must remain available for 60 days after the receipt of the text, email or newsletter.
• For text contact, a user must be able to end communications by texting the word “Stop” or “Unsubscribe.” For a newsletter, the unsubscribe option must be easy (such as click unsubscribe, or reply stating unsubscribe) and available on every email.
• All unsubscribe functions must be free to the user.

Most email distribution services provide Unsubscribe options that comply to the regulations. CASL regulations still require that you keep track of unsubscribes, so that you can establish your compliance to the requirements.

Protecting You and Your Business From the Spammer Label

I get a lot of email, so I have a low tolerance for junk emails. I have zero tolerance for junk texts. I expect other business people to be busy too, so I want to ensure that people who receive an email from me aren’t annoyed. That’s just good business.

When people get a lot of email, they tend to have a low tolerance for newsletters, so I like to ensure that I’m giving quality, useful information that makes my newsletters worth reading. I respect the busy-ness of my contacts, so I want to use their time wisely.

All the respect in the world won’t matter if someone decides to complain that you’ve sent them an unsolicited email, so it’s up to you to protect yourself. [clickToTweet tweet=”Meet the CASL requirements, keep records of opt-ins and unsubscribes.” quote=”Make sure you are meeting the CASL requirements, keep records of opt-ins and unsubscribes” theme=”style5″], and maybe – just maybe – we’ll all see less garbage in our inboxes – I would like that result! (I can hope!)

Fundraisers and not-for-profit groups

The rules are less strict for charities, not-for-profits, and groups that are not “doing commercial business.” Here’s a quick checklist, More info for Reg Charities, NGOs and Fundraising

• The unsubscribe regulations have the same unsubscribe requirements.
• CHECK the contact info requirements (signature file stuff.)
• The limitations on sending an email are a much less strict provided the primary purpose of the email is for fundraising. Beware of any mention of commercial interaction, which means you can thank your sponsors but don’t recommend commercial interaction of any kind.

Note: Fightspam.gc.ca has a lot of information: Webinar, Tweets, updates on spam warnings, and Enforcement actions and more… This website provides plain language information about the law but is not a substitute for the law itself. You are strongly advised to review our information bulletins and seek your own legal advice regarding how to comply.

Sources:

Canada’s Anti Spam Law Act(full HTML Version)

FightSpam.gc.ca