Sometime in the fall of 2014, Canada’s anti-spam law (CASL) will finally take effect. If you’re in the United States, you might ask, “Why should I care about a Canadian law?” CASL affects anyone, from anywhere, who sends electronic communications to anyone in Canada. This encompasses American companies who send legitimate communications to their customers and potential customers in Canada as well as spammers from Russia who want you to buy their horrifically expensive product that will enlarge your (fill in the blank with the body part of your choice).
CASL provides penalties of up to $1M Canadian dollars for individuals and $10M Canadian dollars for businesses that violate the law. Given Canada’s warm relationship with the US government, it probably would not be difficult to prosecute an American company that willfully ignores the Canadian law; a Nigerian spammer, who would like to give you millions of dollars, on the other hand – good luck, Canada. Fortunately, for those of us in the US who do the majority of our business within our borders, with only occasional forays outside, there is an exemption if the sender did not know and could not expect to know that the recipient was in Canada.
The Canadian law differs in a number of respects from the United States’ CAN-SPAM law. We’ve put the major differences into a simple table for ease of reference:
|United States CAN-SPAM||Canada’s CASL|
|Opt-out framework||Opt-in framework|
|Regulates commercial email||Prohibits commercial electronic communications|
|Applies only to email||Applies to all electronic communications: email, text, IM, social media (and any future developments)|
|Scope: messages with a primary purpose to promote||Scope: any communications with any commercial content|
|Violations: $16,000 per email||Violations: C$10,000,000 for businesses and C$1,000,000 for individuals|
|Active opt-out mechanism for 30 days||Active opt-in mechanism for 60 days|
|Opt-outs adhered to within 10 days||Opt-outs adhered to within 10 days|
CASL does include provisions for implied consent. If you have records of an existing business relationship with a Canadian citizen or business, you may:
- Communicate up to 6 months after an inquiry or application
- Communicate up to 2 years after a monetary transaction
The extremely broad scope of the law significantly impacts your entire communication with Canadian citizens and businesses, in a number of ways:
- It will be more difficult for marketers to purchase lead lists or “rented email lists” since you generally don’t know the origin of the addresses on lists you purchase.
- Your request for consent from a Canadian consumer must be in writing, not verbal.
- You have to keep detailed records or an audit trail of your communications with Canadians.
- Unless you have marketing automation software, you will have to figure out how to keep track of the time that you’re allowed to communicate with them, and stop communications after the period expires.
- The unsubscribe mechanism must be no more than 2 clicks.
Canada is still tweaking the law, and it will be some time before we know the final provisions and regulations. There has been a backlash from Canadian businesses who say that the law will do nothing to actually stop spammers from foreign shores, while it gives legitimate businesses a mountain of red tape and record keeping. Some claim that there may even be a shift back to sending junk mail instead of email in Canada, although it’s probably unlikely since bulk mail costs considerably more and the ROI can’t be measured.
Next week we’ll discuss what we will be doing (and you could be, too) to prepare for CASL’s eventual enactment. If you want to know more about CASL, subscribe to our blog. We’ll keep you updated on this and lots more.