4 common misconceptions with CASL

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.
CASL training
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.

Monica Goyal
Monica Goyal
Monica Goyal, Entrepreneur, Lawyer and Innovator is the founder of Aluvion, a legal solutions company offering technology, paralegal and lawyer-driven solutions with a special focus on the quality, cost, and accessibility of legal services for both businesses and individuals. Monica began her career working as an engineer in R&D for companies like Toshiba, Nortel and Nokia while earning her Masters of Engineering at Stanford. Monica's history conditioned her to solve problems in a efficient and tech-savvy manner, an approach she brings with her to legal solutions. Monica currently sits on the Canadian Bar Association's Futures Initiative, and will be teaching a course on Legal Technology at York University’s Osgoode Hall. She was recently named one of 10 Women to Watch in Tech in the Journal of the American Bar Association.

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