With the enactment of Canada’s Anti-Spam Legislation (CASL) around the corner, it’s hard to know what kind of message your business is allowed to send to reach customers, and what kind of message is taboo – especially with the threat of a sizeable fine.
Penalties for non-compliance can reach up to $1 million for individuals, and $10 million for businesses, with statutory damages of up to $200 for each violation of the prohibition. Just one email or text can count as a violation. So with those stakes on the table, how do you ensure you mitigate your risk and comply with CASL?
On Sept. 29, Toronto lawyers Adam Kardash and Joanna Fine held a workshop for 60 attendees from organizations from all over Toronto, explaining who the laws will apply to, and what kind of messages will fall under its scope. Kardash and Fine, who specialize in privacy and information management at Heenan Blaikie LLP, supplied us with more details on CASL, unpacking what it means for businesses.
What kinds of organizations does CASL apply to?
“CASL isn’t meant to stop legitimate business activity. It’s meant to stop rogue spammers,” Kardash said during his presentation. He said CASL will apply to any organization sending commercial electronic messages, focusing on cutting down on spam and preventing Canadians from getting unwanted texts and emails landing in their inboxes.
However, there are exceptions to the rule. During the workshop, one attendee asked whether CASL targets foreign spammers.
“This legislation will have no impact on someone sitting overseas firing off unwanted spam messages,” Kardash said. “What it will do is provide Canada, the last G8 country to get this, with anti-spam legislation … dropping a hammer on someone sitting in Toronto or Montreal. This provides a very clear hammer.”
What kinds of messages does CASL apply to?
CASL isn’t limited to just emails or texts, Kardash said. It can apply to any commercial electronic message sent through any means of telecommunication, including sound and voice messages.
It also includes emerging forms of electronic messaging, meaning in the future, something built “by a guy in his garage” could still be covered under the law. Basically, any form of electronic messaging that encourages the recipient to participate in a commercial activity falls under CASL, Kardash said.
So how can businesses contact customers?
When CASL comes into force, there will still be some exceptions for Canadian businesses. While the rules are very clear about whether businesses can send messages to consumers, those rules are waived when consumers give express or implied consent to receive them.
Express consent can be either in verbal or written form, but it has to be an action on the consumer’s part. They need to know what the consent is for, and they have to be provided with the sender’s contact information. They also need a statement indicating they’re allowed to withdraw their consent at any time. Given the benchmark for express consent is a high one, prechecking boxes saying “I want to receive information about the sender’s offers” doesn’t truly count as consent, Kardash said.
However, obtaining implied consent is a little easier. This happens when two parties already have an existing business relationship. For example, if a recipient has purchased goods or services, or signed a contract with a business, they’ve given their consent to be in contact with that business. Yet this form of consent is time-sensitive, only counting for two years after a purchase has been made or two years after a contract has expired. If a customer has submitted an inquiry or application, the implied consent is only valid for six months, Fine said.
Beyond consent, are there any other opportunities for businesses to send messages to customers?
Businesses still get the green light to send messages that answer customer queries, or that provide quotes or estimates. Those kinds of messages are also OK under CASL when they simply confirm a commercial transaction, Fine said. However, the messages still have to comply with CASL’s consent and unsubscribe requirements, giving recipients a way to say they no longer want to receive those kinds of messages.
What’s also unclear is how CASL will handle cases of businesses running contests. Fine suggested those may be considered as implied consent, with contest entrants agreeing to receive messages from a business for up to two years after the business names a winner. Still, legislators may need to clarify how that will work by the time CASL rolls around next year.
Canada’s Anti-Spam Legislation (CASL) will be coming into force July 1, meaning businesses will have to watch what kinds of electronic messages they’re allowed to send their customers. And here at IT Business.ca, we’ve been preparing a series of stories on what kinds of messages are green-lighted under the new laws, and what kinds of messages can land businesses a hefty fine.
Yesterday, IT World Canada and the law firm of Heenan Blaikie LLP ran a workshop for about 60 attendees, with lawyers Adam Kardash and Joanna Fine explaining how to mitigate risk and comply with CASL. They gave us deeper insight into the laws’ effects from a legal standpoint.
Here are Kardash and Fine, giving us a quick explanation of what we will all need to know when CASL arrives.
Bret Conkin is the chief marketing officer for FundRazr, Canada’s biggest crowdfunding platform. He has prepared this list of tips for marketers, in advance of Canada’s Anti-Spam Legislation (CASL). This post appeared as part of our Twitter chat on Sept. 23, held at the hashtag #beCASLReady. Check out his post below for his tips!
If you send email from or to Canada, then you need to know about Canada’s Anti-Spam Legislation (CASL) so you can start preparing now. Here is a guide with some examples of the marketing impact of the new legislation on our business FundRazr. There is still some grey in some of the provisions, so stay tuned.
As background, FundRazr is Canada’s largest crowdfunding platform. We send email to over 20 countries including Canada, from Canada. We have 70,000 social media followers and we send a large amount of email and other commercial electronic communications like Facebook notifications.
To prevent spamming, hacking, malware, fraud, harvesting and privacy invasions in Canada. Or in government-speak – in the interest of promoting “the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities.”
1) Check your Consent. 2) Fix your Content. 3) Start Now. 4) Fewer headaches later. The sooner you adjust the less cleanup once CASL hits.
• Need permission before sending email.
• Need to be able to prove the permission with clear consent.
• No false or misleading subject lines or from names. Clearly define the sender.
• No pre-checked boxes on forms. Consent needs to be an affirmative action.
• Unsubscribe features must work and take place within 10 days. A valid unsubscribe link must work for 60 days after the send date.
• No sending an “Are you sure you want to unsubscribe?” email to confirm unsubscribes.
• Must include a valid postal mailing address and either: web address with contact form, email address or phone number.
• Both organizations must be disclosed if you are sending “on behalf of” another organization.
• Charities are included if they are selling or soliciting (e.g. donations).
One issue we’ve considered at FundRazr is around No-Reply emails like the Reply-To: The FundRazr Team firstname.lastname@example.org used for this newsletter.
Under CASL, disclosing the sender and making contact easy is prescribed. Like other businesses, we’ve used them in the past to avoid out-of-office replies flooding our inbox. We’ve decided to move away from this practice as the benefits of cleansing our list and making it easier for customers to talk to us far outweigh the drawbacks. See more at Elite Email Inc.’s blog post.
CASL changes the way we get permission and how we communicate online with severe repercussions for non-compliance. Records of clear consent need to be kept and date stamped. Partner programs are an example of an area where CASL has an impact.
We offer a Crowdfunding as a Service solution for other businesses wishing to offer crowdfunding to their customers who need funding, called Powered by FundRazr. All on-behalf electronic communications related to this plug-in offering will need to disclose both organizations, e.g. FundRazr and Collegiate Club Sports.
Another example is keeping business cards that prove the recipient shared their address with you (and did not specifically ask not to be sent emails.) Or better yet, using Card Munch or customer relationship management software – FundRazr uses Highrise – to date stamp the contact.
Businesses with an offline component like a storefront, tradeshows, or events need to find ways to keep records of consent when they gather emails without a business relationship – like a purchase or contract – in place.
1. Take inventory of databases – what’s being sent to whom and why:
At FundRazr, we have started to segment all databases by their consent level and exact timing. Prior to the legislation we classified the databases by month, which would be risky going forward.
2. Check existing consents and their wording:
Determine where consent obtained is expressed and where it may be implied (e.g. current business or non-business relationships).
3. Identify exceptions:
a. Family/personal relationships.
b. Inquiries/requests to/from recipient.
c. Employees of organizations or other organizations where business relationship exists.
d. Enforcing legal rights.
e. Visitors to Canada.
f. Transactional emails (without marketing language).
4. Robust data management:
For example managing two-year and six month time limits under CASL for implied consents, unless upgraded to express consent, with “stop send” dates in system.
At FundRazr, we cleanse our lists quarterly, do not mail to customers more than 12 months old and try and ensure express consent as much as possible.
5. Upgrading to express consents:
Send out re-confirmations (CASL-compliant requests) to achieve opt-in express consents, where necessary. E.g. Language like “We want to make sure our subscribers get the right information. Please verify your address here.”
6. Ensuring CASL-compliant unsubscribes:
This must be functional for at least 60 days, no cost to recipient, should use the same means as original CEM, includes either an electronic address or a link to which the unsubscribe may be sent, and is processed without delay and within 10 business days.
At FundRazr, we clean our lists of unsubscribes weekly and meet the other requirements, so this has not had a real impact.
7. Auditing Social Media Messages
Review communications. Check the function of your messages and where they’re sent. It’s also important to determine what is caught by CASL and the requirements for compliance. Here’s an additional resource from Davis LLP.
Elite Email also seems to be providing very good insights into CASL on its blog.
In other words, these services can help guide you as they help manage compliance on a by-market basis. Other benefits include deliverability and accessing the latest technology. When sending emails without third-party providers, ensure all aspects of CASL are followed.
Further, the social media platforms also provide regulatory compliance assistance for marketers using features like Facebook authentication. These platforms build in explicit consent mechanisms and can be very useful options for online businesses. Currently all FundRazr campaign creators must authenticate with Facebook or Google + which helps ensure explicit consent.
What are some good strategies to elicit consent from customers, in light of CASL?
Clear Terms of Service. Double opt-in. No pre-selected boxes on forms. Clear language. Understanding database management requirements.
What kinds of penalties can businesses expect for flouting CASL?
Maximum penalty for a violation is $1 million for an individual and $10 million for a business. Directors and officers can be personally liable. See more at this blog post from Davis LLP.
Can you share any tips for small businesses that need to be mindful of CASL?
Study the regulations and be ready beforehand. Note that the CAN-SPAM Act of 2003 and CASL regulations differ. FundRazr is already compliant with CAN-SPAM, but key differences that CASL introduces that we had to note include:
a. Text, social media notifications and messages, instant messaging and “computer programs” are now covered.
b. Opt-in vs. opt-out
c. More specific disclosures
CAN-SPAM only covered email and since FundRazr is a platform and social media application, we needed to review additional messaging to ensure compliance. The specific provision about express consent for software applications can be found here.
So, check out the resources included here and on ITBusiness.ca and continue to do your homework. That way, your small business will be ready for all of the changes with CASL – and you’ll be ahead of the curve.
Canadian marketing company Elite Email Inc. has released a new mobile tool that aims to help businesses build a customer base – and keep it – as Canada’s anti-spam laws loom ahead.
Elite Email, which is celebrating its 10th anniversary on July 3, announced it launched Elite Mobile Marketing on July 2. The tool prompts customers to text a keyword to a number like 555444 in return for a coupon code or promotional discount. It then adds customers to an emailing list, and it can also send them notifications and updates via their smartphones.
“We want to let our customers do a little more and capitalize on the fact that everybody now has a mobile device,” says Robert Burko, CEO and founder of Elite Email, adding that clothing brands, restaurants, and other clients can use the tool for quick promotions. For example, if a restaurant wants to advertise happy hour drink specials, it can send texts to all the customers on its list.
“With text message marketing … all of a sudden, you have a way to get a lot more information into your customers’ hands really fast, while keeping open the remarketing potential, which is really where the true value is,” Burko says. “Now it’s not just about the one-time message – you can remarket to that person every Friday at happy hour for the rest of the summer.”
And while QR codes fulfil a similar function, Burko says older people don’t always want to use QR codes since they are unfamiliar and unwieldy, especially since users need to download an app to scan the codes themselves.
So far, a few of Elite Email’s clients have used the mobile marketing tool as a demo during warehouse sales. For example, at a Lacoste and Esprit sale in Toronto in May, there were signs everywhere on the sales floor telling customers to text a number for the chance to win a pair of shoes.
And while that was handy in getting customers excited about deals, the real gem in using text-based marketing was the ability to remarket to those customers. By entering the contest, customers agreed to be added to a mailing list to receive more offers and advertisements.
Only 0.38 per cent of customers opted out of the mailing list after the warehouse sale was over. Among mobile users, 0.15 per cent asked the company to stop sending them text messages.
The game plan in getting customers to agree to keep receiving marketing missives? Solid, interesting content that provides value to the customers as well as the company sending the messages, Burko says. Following up on the Lacoste and Esprit sale, Elite Email sent out messages alerting customers to similar sales happening in the Greater Toronto Area.
“The key is, follow-up content has to be good. We always say, the right message, the right person, the right time … If you send out good content at the proper frequency, people are going to open your emails, they’re going to engage with your mobile campaign, and they really like it,” he says.
“The people who join, we know a lot about them and we’re really big on the analytics. So we know how often you open your email, which links you’re clicking on, where you’re clicking on it, we know all that information. So we can very quickly build a customer profile to know who is the person who came to the [event] … and ensure the content afterwards is playing to their interests.”
The other important piece of sending these emails is that customers have consented to receiving them. Getting consent ensures companies are complying with Canada’s Anti-Spam Legislation (CASL), which has passed through Parliament and has received Royal Assent. It will be coming into force July 1.
When CASL finally does launch, Burko says he expects companies will have to be even choosier about how they leverage email marketing.
“What we’re going to see in email marketing is a tipping point, similar to what we did with websites,” he says. “So if you can imagine there was a point in time where not everyone had a website, some people did and some people didn’t, and all of a sudden, if you didn’t have a Web site, you weren’t a real business. We’re going to see the same thing with email.”
Elite Email hasn’t released a price for its mobile tool yet, but its emailing tool starts at around $15 a month, although that increases as the mailing list gets bigger, Burko says.
Canada’s new Anti-Spam Legislation is coming. It will come into force July 1, and it will have a broad sweeping impact on all organizations that use e-mail marketing, mobile marketing, and other forms of digital communication. Since most organizations will fall under this very large umbrella, it is important that everyone start paying attention sooner rather than later.
With the enforcement date right around the corner, it’s time to start taking action today to make sure your business is ready for the new regime.
Some marketers may take this approach. And, those marketers may very well be in a panic situation later on when CASL goes live on July 1, along with its very steep (up to $10 million per violation) penalties. Gambling that CASL never sees the light of day is high risk and pretending that it doesn’t exist is hardly a good business strategy. Whether marketers are happy about this new rule book or not, the fact remains that it is something that needs our attention, and the sooner you start, the easier it will be.
Getting proper consent from all your subscribers (especially if you have a lot of data) can take a lot of time. It will be a lot more effective to do this at your own pace and follow a pre-planned strategy instead of being pressed up against the CASL deadline. The second is that if you don’t start taking the proper steps now, every new subscriber acquisition that doesn’t follow the specific CASL rules is just making your problem bigger in the future. By making a few important changes to your policies, an organization can ensure that all new subscriber acquisitions are CASL-friendly.
Begin by taking a look at your current database and communication tactics. What many organizations don’t realize is that there may be a lot of subscribers who are already CASL-friendly, depending on your current practices. CASL is all about consent, so the first goal is to segment your database based on whether you achieved proper consent. The topic of ‘valid consent’ is a robust one, but in short the primary thing is whether or not your subscriber took an active step (such as signing up for your mailing list where you explicitly say they are going to receive emails from you and they agreed to it) and you have evidence to backup that consent. The evidence usually takes the form of a signup or confirmation IP address and date/time stamp.
Once you have thoroughly reviewed your database, create segments for those that need to be re-confirmed and those that are already CASL-friendly. If you are unsure, then it is generally better to be safe than sorry and put those subscribers in the ‘re-confirm required’ segment so that you are more protected.
Now that you know who needs to reconfirm their subscription, it’s time to start running reconfirmation campaigns. There are a variety of ways this can be done, but the key objective is getting that explicit consent where the subscriber proactively says “yes, I want to receive your emails,” and you can save the evidence of that request. This can be as simple as a link in your existing newsletter, where you openly and honestly disclose that you want to make sure you’re sending people the emails they want and you kindly request them to verify their subscription.
Take an in-depth look at every form your organization has that enrols people onto a mailing list. This can include the primary signup form on a website, landing pages used for lead generation, micro-sites, Facebook tabs, etc. Don’t miss any forms because the goal is to know that you’ve got CASL-friendly practices in every form, everywhere! CASL is opposed to sneaky pre-checked boxes that try to opt a user in unless they take an action to opt-out. The act of opting in needs to be proactive not reactive, so be on the lookout for any enrolment checkboxes and make sure they start unchecked and are worded correctly, otherwise in the eyes of CASL it voids all your new acquisitions. It is also a good idea to make a clear statement that by submitting the form, they are consenting to receive emails from your organization.
The concept of double opt-in or a closed-loop subscription process has been part of “email marketing best practices” for a long time already. However, if you’re still not doing this, it’s a good idea to start now! Not only will it prevent fraudulent subscriptions, but it will make your CASL evidence that much stronger. The general idea is that upon signup, the subscriber is sent a welcome or confirmation email with a link they need to click to verify their subscription. This way you know with certainty that the email address entered into the form belongs to the correct person who is signing up.
Take a look at all the ways an e-mail address can be added to your mailing list. While the topic of signup forms has been addressed above, organizations usually have multiple channels at work. For example, are you gathering e-mail addresses at a trade show or other event? Make sure you know every channel that feeds data into your mailing list so you can create proper procedures for acquiring the opt-in and (the more difficult part for offline acquisitions) having evidence to prove your claim.
CASL has a “Two Year Rule” that essentially lets an organization send emails to someone if they made a purchase or signed a contract within the last two years. During that two year window, proper consent needs to be acquired in order to continue emailing them after the two year window. It is important that an organization has accurate records for the exact date of a customer’s last purchase (or contract signing date) so that this window is clearly defined. If an organization just records a new customer without a date, then it will be impossible to measure (and prove) that you are within the two year window. Furthermore, knowing when the two year window ends, provides a clearly defined timetable for when alternate consent needs to be secured.
All of these changes will help make sure that you are ready for CASL. While none of them are outrageously complicated, it will take some time, effort, and critical analysis to ensure your organization has all the bases covered.
A Quebec startup says it has built a communications platform that will help businesses navigate Canada’s Anti-Spam Legislation (CASL).
For the past two years, Montreal-based startup Taarga has been serving its clients with a platform that helps businesses manage their messages to customers, allowing them to send emails, texts and voice messages to customers all with one user interface. Through a user interface that looks similar to HootSuite or Tweetdeck, about 1,000 companies have been using Taarga’s system to reach out to their clients.
The system is also compliant with CASL, thanks to Taarga’s consultations with lawyers, says Fritz Nykamp, founder of Mamoth-Group. Taarga is a subsidiary of the group. With CASL coming out soon, businesses will want to know what they need to do to prevent flouting the anti-spam laws and getting hit with heavy fines – and Taarga helps them on this front, Nykamp says.
“Everyone is so extremely busy that it’s extremely easy to forget just one small detail. Or one very exuberant salesperson is trying to do his best to hit his sales quota and reached out into the phonebook and just started calling or texting people,” he says. “Just a five minute decision, and it could lead to a big lawsuit or to a big penalty or a fine.
“And using us will … give [businesses] that peace of mind that they won’t have to go through that. Sales managers or service managers or anybody that’s responsible in marketing can be rest assured that all communication is done properly to their customer base, that it will not anger anybody and that it will be completely compliant with all the laws.”
Taarga also offers consulting services, working with companies to help them market their messages to the right consumers, Nykamp adds.
In an effort to block companies from spamming random lists of potential customers, CASL requires all businesses to clear their mailing lists and get explicit consent from the customers on those lists as to whether they can continue to send emails to them. Even if customers have signed up to be notified for services and offers, businesses must now explicitly ask if customers want to continue getting these notifications.
Businesses have a two-year window to do this from the time the law takes effect. The bill gained Royal Assent in 2010 and is finally coming into force July 1, 2014.
Taarga’s type of service is one that John Lawford, executive director of the Public Interest Advocacy Centre, expects to see cropping up more often, with similar offerings also coming out as CASL takes effect. For the past few years, Lawford has been following CASL closely to see how it might impact consumer interests.
“[To comply with CASL], you have to make sure that each email that’s generated has the ‘unsubscribe’ information, and that when you have the unsubscribe mechanism, it has to work. You also have to have a number or physical address that people can reach if they have problems with it,” he says. “A lot of that could be looked after by a company offering a generic service for smaller [businesses] that don’t want to spend money on IT systems.”
Not complying with these laws and regulations can land a business a fine of up to $10 million, but it’s not likely small businesses would be hit with something that hefty, Lawford adds. Instead, he expects CASL violators would get multiple warnings and be subject to a range of penalties, giving them chances to fix their messaging systems.
And while CASL may seem like a nuisance in the short term, the laws might actually improve businesses’ marketing strategies, he says.
“It will reduce scattershot marketing, where you have somewhat dubious or older lists and you just keep sending stuff, where you’re not really sure if you have any connection with the consumer really, because you haven’t established it in years,” he says. “It’s not the end of the world. It’ll be fine and the act doesn’t stop you from using email. It just says consumers get to decide whether they want the emails or not… So longer term, I think it’ll be helpful because you’ll have clean lists of people that really want to know about your product or whatever you’re selling.”
In the meantime, businesses trying to figure out how to comply with CASL can check the Canadian Radio-television and Telecommunications Commission website for guidance. They can also start editing their lists and setting up a mechanism to ask customers for explicit consent, whether that’s through a newsletter, when they come into a store to buy something, or when they decide to renew a contract.
There’s no real way to gauge how customers will react to requests for explicit consent, Lawford says, but at least businesses can be prepared. He says it may make a good summertime project, especially if this is a slow period for some companies.
While they’re celebrating Canada Day this year, e-mail marketers may also be feverishly reviewing their e-mail lists to make sure they comply with a tough new anti-spam law.
Although there have been questions about its enforcement, Bill C-28, also known called CASL (Canadian Anti-Spam Law), carries some potentially serious implications for businesses. For instance, firms found to have sent unsolicited e-mails or other digital messages (such as mobile phone calls and text messages) could face fines as high as $10 million.
Recently, Industry Canada also announced plans to build a Spam Reporting Centre. The centre, dubbed The Freezer, will field reports and complaints of spam. The gathered information will be used as evidence of potential violation against offenders and used by enforcement agencies in levying fines or other penalties.
These initiatives target spammers, but legitimate small and medium business operators as well as e-mail marketers at large firms must also familiarize themselves with the CASL and make sure they are well positioned for compliance.
Here’s a checklist and a few pointers of what you should know to make sure your business is on the right side of the law and avoid being put in The Freezer.
Proving you’ve received the consumer’s consent to send out marketing material is perhaps one of your strongest defences, according to Neil Schwartzman, executive director of the Coalition Against Unsolicited Commercial Email (CAUCE) and vice chair of the Messaging Anti-Abuse Working Group (MAAWG).
“Before sending out anything, it’s vital to determine first if you have the consumer or receiver’s consent,” stressed Schwartzman who worked with Industry Canada during training sessions on the CASL.
Inbox Marketer, a Guelph, Ont-based digital marketing firm, said that although Bill-C28 still contains situations where “implied consent” (consent taken to have been granted by a person not expressly, but rather inferred, such as through a business contract), it is important for businesses to clarify the requirements for “expressed consent” in the context of the legislation.
The law recognizes ordinary business activities as forms of implied consent, including existing business relationships and business messages to addresses that have been published or disclosed. So, for example, a business can send messages to customers who have purchased goods or services within the past two years, said Stéfanie Power, media relations representative for Industry Canada.
If a business has express consent from the recipient, there is no time limit on sending commercial electronic messages. In certain circumstances where follow-up messages are part of the initial service provided, such as sending messages containing account or warranty information, consent is not required, Power added.
After CASL comes into force, businesses will have three years to send messages to existing contacts, regardless of when they last communicated.
The following tips from Inbox Marketer are for e-mail marketing, but they can also be adopted for use in other forms of digital marketing:
The unsubscribe page can be used to gain valuable insights about your customer according to Inbox marketing. For example, allowing subscribers to change their e-mail address or other contact information, rather than have them unsubscribe and then re-subscribe with their new address.
Businesses can also include a short poll to ask the recipient why they are unsubscribing. Inbox Marketing suggests you keep it “painless” by limiting the list to four or five – the last one being “Others – please specify.” This poll must be presented as optional as recipients cannot be required to do anything beyond indicating their desire to unsubscribe.
How to optimize your campaign
Despite restrictions presented by CASL, SMBs can still find ways to improve their campaigns within the legislation’s confines, said Schwartzman of CAUCE.
First, he suggests, that businesses establish baseline policies for interacting with subscribers across all technologies. This will meet the CASL requirements but also allow you more customer touch points.
He also encourages business to segment subscribers and targets based on expressed preferences, observed behaviour, demographics and customer lifetime value. “Use opt-in consent methods for capturing contact information,” he said.
Schwartzman also recommends that business periodically review their policies and practices to ensure they are operating within the law.
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