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Canadian Anti-Spam Law (CASL) and Regulatory Bodies

A topic that has been of discussion for about the past year is the Canadian Anti-Spam Law (CASL). What is CASL? Well it’s not that simple, but to summarize it, it was officially enforced by the Canadian Radio-Televion and Telecommunications Commission (CRTC) on July 1, 2014. It made it mandatory for organizations to gain consent from Canadian recipients before being able to send a commercial electronic message (CEM). A CEM can be in the form of email, text message, or instant message. There are two types of consent you can gain from recipients.

Implied Consent

Implied consent is when you had a previous business relationship with the person, a previous non-business related relationship with the person, or the email address was published or sent directly to you. If it was sent to you or published, what you are sending them must be something related to their work. Implied consent is time-limited to typically two years.

Express Consent

Express consent is when the person has clearly written or verbally agreed to recieve CEMs. The organization’s request for consent is also clearly stated. Express consent has no time limit, unless the person withdraws their consent. It is important to keep records of implied and express consent if proof of consent is ever requested.

Violators of CASL

This law has only recently been established, but how serious are organizations taking it? The consequence for an individual to break the CASL law is up to $1 million and the consequence for an organization can go all the way up to $10 million. CASL does not only apply to Canadian organizations, but any company in the U.S. that contacts Canadians can also be potentially prosecuted.

The first organization to be fined by the CRTC was Compu-Finder for $1.1 million. They are a corporate training organization in Quebec that continued to send unsolicited CEMs after CASL officially became a law. After investigation, it was found that Compu-Finder was sending emails without the recipient’s consent, as well as including an unsubscribe mechanism that did not function.

A smaller lawsuit is the recent Plenty of Fish violation. The popular dating website had to pay $48 000 for violation of CASL. The CRTC started their investigation due to complaints from Canadians. Plenty of Fish had an unclear unsubscribe mechanism, which is against the rules of CASL.

CASL and What Qualifies

If you are using Alinity to send your members messages like reminders regarding renewal, regulatory changes, etc. you can continue to do this, since it does not contain any marketing language. The member has also granted consent by being part of the profession. These messages are onside with CASL.

Let’s say you have the following scenario: You are about to email your members a reminder about renewing their license and want to also include a notice in the same email that through some of your partnerships, your organization can offer cheaper rates for their professional liability insurance.  The renewal reminder must go to all members to ensure that they are aware of their obligation to renew on time.

You should not try to create loopholes by creating a reminder email and include commercial content in it. This is a violation of CASL. To be safe, our reccommendation is that you ensure that you’re onside with CASL by splitting your content into two emails. The reminder email should only have the renewal reminder information and you can send it to all your members. The second email, which should only be sent to people that are still opted-in, can contain all the commercial information regarding the cheaper rates for professional liability insurance.

If you haven’t already gotten express consent during the time period that the CRTC allowed organizations to have before CASL was implemented, it is too late to do so, but it is never to late to start improving your current CEM practices. To make sure you are not in any hot water in the future, here are some tips to sending commercial emails to your members legally.

  • Make sure there is an unsubscribe mechanism in your outgoing emails.
  • Make sure all email collection forms on your website have an opt-in. This could be on first time membership sign-up, payment pages, etc. Do not have the opt-in pre-checked, this is against CASL.
  • If you have any email addresses that may be expired or requested to no longer receive CEMs, make sure to remove them from your system to avoid emailing without consent.

License management and CASL

These simple tips will keep your organization out of CASL trouble. Permitsy helps support you in your efforts to ensure that you are operating in accordance with CASL by offering your members the ability to manage their opt-out preferences online.  Permitsy further supports this by checking with you BEFORE you send an email whether that email is commercial in nature – so that it will only send it to the appropriate audience!

*Please note: We are not lawyers and this is our interpretation of the law. We use this interpretation in our own communication with our clients. If you have any doubts at all about if a message is commercial in nature, you should consult with an attorney before sending.