July was CASL’s first month in effect, and it’s been generating a lot of discussion and reactions.  With so much discussion around the new legislation, a couple of misunderstandings have grown to become repeated so often, some business owners have come to believe some very peculiar things about Canada’s new anti-spam law.

1. CASL doesn’t affect your traditional media campaigns.

For CASL to affect a campaign, there needs to be a commercial electronic message, and an electronic address. This means text messages and emails, not paper mailers or phone calls.  Social media is a grey zone, as the definition of an ‘electronic address’ might vary from platform to platform.  For example, on Twitter, your tweets can be as commercial and unsolicited as you would like since they are not being delivered to an ‘electronic address,’ but it’s possible that CASL might apply to direct messages on Twitter, since they reside on a Twitter account’s ‘inbox’.

2. You don’t need to throw out your old mailing list, if you built it properly.

If you built your mailing list organically using tools like MailChimp, you likely have acquired consent for the list. As long as your users explicitly consented to the mailing – for example, by clicking a box like ‘please add me to your mailing list,’ or giving you a business card at a trade show – then the only change you need to make to your mailings is to make sure they clearly identify the sender, and include an unsubscribe button.

3. You don’t need to throw out your old mailing list if you didn’t build it properly.

If you built your mailing list from third-party sources, or from web forms with pre-clicked consent boxes, you may not have explicit consent as required by CASL. But, good news: If you have a mailing list that was operating before July 1st, 2014, there is a grandfather provision for your mailing list that gives implied consent to continue to communicate with those people for the next three years.

While this month has seen many well-constructed ‘please opt-in emails’, many companies are rushing to send consent emails that don’t need to be sent any time soon. Some mail tools like Envoke allow you to slowly move your mailing lists over from implied to express consent by injecting a small banner at the top of outgoing email to implied consent addresses.

4. Just because you aren’t asking someone to buy a product, doesn’t mean it’s not a commercial message.

There is a lot of talk about how to ‘get around’ CASL by making sure your mail isn’t a ‘commercial message.’ While there are broad exemptions carved out for fundraising, everyone else should be wary. The definition of ‘commercial message’ in CASL is fairly broad, and it can include basic brand promotion.  

For example, a printing company could have a ‘non-commercial’ newsletter that reports on the environmental impact of the printing industry. But as soon as that newsletter mentions that the company is a printing company that cares about the environment – for example, mentioning the award the company won last month, or posting an interview with their CTO about their new green initiatives – they will have likely crossed into the realm of commercial messages.

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  • http://www.emspace.ca/ Digital eMspace

    Thank you for the article! I’ve seen so many blog posts and articles talking about CASL and the topic is getting boring. We’ve even wrote a few posts about it on our blog(s). The problem is, however, it’s the law, so we have to pay attention and ensure we understand it completely. You mentioned something that I hadn’t thought about until reading your post: twitter mentions being considered as CEM. It seems that CASL may even effect your social media efforts! I’ll be looking into this further as I want to learn more about the rules, guidelines, and do’s and don’ts. Thanks again!

    • Monica Goyal

      Thanks Digital eMspace. Absolutely social media should be considered. I would say that CASL could apply to DMs from twitter and unsolicited messages through Linkedin.

  • BB

    Great post! You mentioned that “if you have a mailing list that was operating before July 1st, 2014, the grandfather provision allows us to communicate with those contacts for 3 more years. Does that provision have a grace period though? I heard it was only 2 years prior to July 1, 2014, so if you collected emails before July 1, 2012 they do not count as implied. Is that true?

    • Monica Goyal

      Hi BB,

      I hope this answers your question regarding collection of emails. The real simple answer is that it is not so clear cut with respect to two years or not.

      There is implied consent for existing business relationships. An existing business relationship has as part of its definition that there was a message sent within 2 years of the purchase or lease of a product, goods, a service, land or an interest or right in land. However, the definition of existing business relationship is broader than that, and you can establish implied consent in other ways such as the email address was disclosed without any restrictions (such as a business card). This is from the government website: “You can continue to use email if you have express or implied consent from recipients. During the 36-month transition period, you can continue to use your current email list if you have previously provided your products or services to them and they haven’t told you to stop.”

      Monica

  • Joseph Roy

    A public administration (for example a governement or a city) is co-organizing an public event. He wants his employees to learn about the events and eventually register for it. The public adminsitration will pay for the resgitration fees. Can the public administration send an email to all his concerned employees legally? He plans to use his internal employee emails list.