Small Business CASL Compliance Guide

What Is CASL?

In July of 2014, the Canadian Radio-television & Telecommunications Commission (CRTC) introduced The Canadian Anti Spam Legislation (CASL). This legislation was introduced to reduce the amount of spam sent to Canadians by ensuring that they only receive electronic communications (CEMs) that they have agreed to receive.

What is a CEM?

CASL is focused around the sending of what it calls “Commercial Electronic Messages” or CEMs. A CEM is defined by the CRTC as “a message whose purpose is to encourage participation in a commercial activity”. CASL applies to any commercial message sent via e-mail or text (SMS) message. For the purpose of this article, we will focus on how CASL applies to sending CEMs through e-mail.

CASL compliance is not needed if you’re communicating to consumers using:

• Non-commercial messages.
• Phone calls and faxes.
• Social media posts.

To send a CEM under this new anti-spam law requires having the recipients consent first. This consent can either be express or implied.

Express Consent Vs Implied Consent

What Is Express Consent?

Express consent is given when the recipient gives you clear permission for you to send them e-mails.

How Can You Get Express Consent?

To get express consent the recipient must opt-in to receiving e-mails, rather than having to opt-out. For this reason, pre-checked boxes do not count as express consent. You are also not allowed to simply add an “express consent clause” to the terms and conditions of your website or as a mandatory part of a sign-up process. For example, you could not add in something to a contact form on your website stating that by submitting that form, the recipient has given their express consent to receiving CEMs.

Another way to get express consent is to get it in writing. Typically this is done with a newsletter sign up form that the recipient has to fill out and sign.

What Is Implied Consent?

Implied consent is given when there is an existing business relationship between the sender and the recipient. A “business relationship” is defined as one where a customer has either made a purchase from the sender or has entered into a contract with them. A business relationship is started when a person:

• Purchases a product or service from your business.
• Gives you their e-mail address in exchange for a piece of marketing material such as a brochure or a lead magnet.
• Opens an account with your business.
• Gives you their e-mail address as part of a sign-up process for an event such as a webinar.

CASL also grants implied consent if the recipient has conspicuously published their e-mail address online, without specifying that they do not want to receive CEMs.

Which Is Better; Express Consent Or Implied Consent?

Express consent is better because unlike implied consent, it never expires. Implied consent is only valid for 2 years. Once the recipient has reached the 2 year mark, you will need to get express consent from them or you must stop sending them e-mails. If you obtained the recipient because they consciously published their email address, your implied consent is only valid for 6 months.

Express consent has none of these restrictions; you can freely send the recipient e-mails until they opt-out of your list.

Tips For CASL Compliance

Make Sure To Add Your Business Information & Unsubscribe Method To Every CEM You Send

To fully comply with CASL, a commercial e-mail needs to have:

• The name of the business that sent the e-mail.
• The address of the business that sent the e-mail.
• A clear way for the recipient to unsubscribe, should they wish to.

One of the problems with CASL is that the legislators that wrote it did a poor job of defining what they meant by “commercial” messages. While the intent was to limit how businesses could send e-mails designed to sell something to the recipient; the more broad definition of “commercial” means that other messages such as receipts and warranty reminders are also included in this legislation. To be safe, make sure that every e-mail that you send to consumers has your business name, address and an unsubscribe method so that it fully complies with CASL.

Add An Opt-In Checkbox To Your Online Forms

The best way to get express consent is to add in an opt-in checkbox to all of your online forms. To obtain express consent, the checkbox should be unchecked by default. The opt-in form must also include:

• The name of your business.
• The mailing address of your business as well as your business phone number, e-mail address or website address.
• A statement letting the recipient know that they can unsubscribe at any time.

Use Double-Opt Ins

If you can’t easily change your online forms, another method to obtain express consent is to use “double opt-in forms”. A double opt-in is a secondary opt-in form that is e-mailed to the recipient after they initially give you their e-mail address.

This secondary form simply asks the recipient if they meant to sign up to receive e-mails from you. They then click a button on the e-mail to confirm their subscription to your e-mail list.

Note: For a double opt-in form to get you express consent it should still include your business name, contact info, and unsubscribe statement.

Use An E-Mail Marketing Tool

E-mail marketing tools (Mailchimp, Constant Contact, AWeber, etc) have built-in systems to help keep you CASL compliant. They automatically add in your business name, mailing address and an unsubscribe method to every e-mail sent through them. They also allow you to create a sign-up form for your email lists which includes a record of the date that each subscriber joined the list, as well as how they were entered (filled out a form, downloaded an e-book, etc).

This makes it much easier to know when implied consent is about to expire for your mail recipients. It also keeps you CASL compliant by storing records of how you obtain your subscribers.

Keep A Record Of All E-Mail Addresses That You Collect Offline

While e-mail marketing tools keep a record of when and how you get your subscribers, the same can’t be said if you collect subscribers offline. If you collect e-mail addresses using manual sign-up forms, or other offline methods, you need to be able to demonstrate how you obtained them. The best way to do this is to keep a record of all of your sign up-forms, either in files or by scanning and uploading them to a digital storage device.

Make Sure To Get Express Consent Within 2 Years After Getting Implied Consent

Remember that your implied consent will expire after 2 years. If you keep e-mailing those recipients after their consent has expired you could be in for some heavy fines (up to $10 million per offense). To steer clear of those fines, make sure that you get express consent within those first 2 years.

The easiest way to do this is to send an opt-in campaign to people on your list that are getting close to the 2 year mark. Simply send them an opt-in e-mail stating that they need to give you their consent to continue getting your awesome e-mails. Send 3-4 emails like this over the course of a couple of weeks. Those that don’t opt-in should then be manually unsubscribed from your e-mail lists.

Wrapping Up

E-mail marketing is constantly one of the best performing marketing channels available to small businesses. With fines of up to $1 million per violation for individuals and up to $10 million per violation for corporations, CASL compliance is a must for any business that wants to send commercial e-mails to Canadians. Before starting any e-mail marketing campaign you first need to understand this anti-spam law and ensure that you’re only sending e-mails to people who have consented to receive them.