In the weeks and days leading up to the implementation of the Canadian Anti-Spam Legislation (CASL) on July 1, companies of all size and shape were caught up in a panic, sending millions of emails to Canadians, seeking “Express Consent” to continue sending ‘commercial electronic messages’, including emails, texts and social media messages.
Unfortunately, with the vast majority of these consent-request emails having been ignored by their recipients, many companies are left wondering if – and how - they can even communicate with their own customers without being in contravention of the new law.
First off, if you didn’t send your marketing contacts a request for CASL consent prior to July 1, relax! That might have been the best move you didn’t make. The fact is, the real teeth of CASL – the right for individuals to sue – will not come into effect until July 1, 2017.
So, unless your firm is a nasty serial spammer deserving of being handed a major fine by the CRTC, you actually have three years to get your sales and marketing databases up to CASL standards.
Understanding CASL
Upon coming into effect July 1, CASL requires companies to have the consent of individuals to send commercial electronic messages, either through Express or Implied consent. It is the two distinct processes of getting and documenting these types of consent that form the crux of the challenge in developing a CASL compliant email marketing strategy.
What is “Express Consent”?
Very simply, Express Consent status under CASL can be thought of as a single documented “agreement to communicate electronically” between your organization and the contacts in your database. (continued.)
#pb#
What is “Implied Consent”?
The CASL legislation defines three broad scenarios in which Implied Consent can apply in a commercial context:
a) Transaction or Inquiry
If someone bought something from your company or made an inquiry, you have two years and six months, respectively, from the date of the transaction or inquiry in which you can continue to send the individual commercial emails on the presumption that their transaction or inquiry denotes Implied Consent.
b) Conspicuously published email address
According to CASL, if someone has published their email address online or elsewhere, it’s okay to send them commercial email messages if the content of the message is relevant to their position or role (assuming there isn’t a notice saying not to).
c) Existing Business Relationship
The contact has an existing business relationship with your company and has provided their email address without any express notice that they don’t want to receive CEMs from you. This is the Implied Consent designation that most companies are likely to rely on to continue with most email marketing activities during the three-year CASL transition period.
How to Manage CASL Consent
Regardless of what you may or may not have done prior to July 1 to prepare for CASL, if your company is doing any email marketing at all, you would be well advised to start capturing Express Consent from your Implied Consent contacts from this point forward. Here are some tips to get you started:
1. Add a checkbox, pop-up or confirmation mechanism to all new email signup forms. Whether you do it yourself or through an email service provider, you will need to capture a number of key details that you likely aren’t now, such as the date and time the consent was received, and possibly even the IP address of the subscriber’s computer.
2. There needs to be some degree of description of the type of email communication the recipient is agreeing to accept, which can be written as broadly as you want. This element can easily be enhanced through subscription preference settings that allow your contacts to see the types of communication available to them and to select only the ones they want to receive. (continued.)
#pb#
3. The request for Express Consent must be explicit and cannot be combined with anything else. For example, you can’t say, “By downloading this case study you agree to receive messages from XYZ Inc.”
4. The request for Express Consent cannot be presented as an opt-out mechanism.
5. There needs to be clear language letting the contact know they can withdraw their Express Consent at any time, and there must be a simple and immediate mechanism for them to do so.
For many companies, developing a CASL consent strategy can be daunting because the law extends beyond email. However, it is vital not to panic and know that there are existing email marketing and online engagement processes available to make CASL compliance as automatic and as painless as possible for all involved.
Martin Millican is president of Envoke.com, a Toronto-based service provider and developer of permission-based automated marketing solutions.
