The legislation proposes stiff penalties to ensure compliance: up to $1 million for individuals and up to $10 million for companies. It also allows individuals to sue a business that sends them commercial emails without consent
The exact form of the legislation is still up in the air (see the next section of this post), but here are seven tips to get your company ready:
1. Gain consent going forward – introduce a process for getting express consent from key contacts for any new customers from now on. This could be done after signing a contract or when a customer makes their first purchase. A formal process will ensure you can easily communicate with these contacts from the get-go.
2. Connect with contacts now – use the time between now and when CASL comes into effect to connect with contacts to discuss the need to obtain express consent. Once CASL comes into effect, electronic messages seeking consent will be considered to be CEMs themselves and no longer allowed.
3. Identify current active customers – companies can rely on the fact they have previously obtained “implied consent” for those contacts with whom you have a “previous business relationship”. Make sure to identify current active customers in your email marketing database now so you can continue to market to these contacts after CASL comes into effect. Companies will have up to three years from the date the Act comes into effect to obtain express consent from these existing customers.
4. Add CRM consent classifications – update your CRM system or email marketing program with classification fields for the various types of consent you will have for contacts. Make sure to capture “Express”, “Implied” and “No Consent” for example.
5.Review current CEMs - look at all types of commercial electronic messages your company has been sending and any email marketing templates currently in use, including your website, to ensure that they contain all of the necessary contact information to comply with new “Identification” requirements outlined in CASL.
Note: under the new updated CRTC legislation, they require a mailing address and either a phone number, email or web address.
6. Evaluate current Unsubscribe process – CASL includes specific requirements related to the “Unsubscribe” mechanisms that must be included in all commercial electronic messages. Take a look at your current unsubscribes process to ensure that it will comply with the requirements going forward.
7. Maintain consent records – As a final consideration, once CASL becomes law, the onus will be on the sender to prove that consent has been obtained. Companies will need to consider how these records will be maintained for each contact in the system so proof of consent can be produced.
For additional tips on preparing for changes before the legislation comes into effect, Lynda Monteith, Plexity Marketing + Communications, shared a great list last fall with some additional suggestions, in particular, for professional services or law firms.
Proposed Changes to CASL
While several changes have been put forth, the CASL regulations still remain in the same form as earlier versions - which intend to validate sender identity, ensure contact information is included in any electronic commercial messages and clarify how ‘express consent’ must be obtained.
Industry Canada has yet to put forth their proposed updated regulations and will likely publish their new set of draft regulations next month for comment before finalizing.
The revised regulations now indicate that consent for the receipt of a commercial electronic message may be obtained orally, as well as in writing, as the original proposed regulations provided; however, the regulations do not provide certainty as to whether electronic forms of consent will be considered to be “in writing” which is a chief concern among many. While some companies want to get started on obtaining express consent now, not knowing if electronic forms are a sufficient form of consent could potentially make progress towards this goal irrelevant.
While the intent of the new Canadian Anti-Spam Legislation is to combat spam, it does ultimately put a lot of pressure on legitimate Canadian businesses trying to conduct business in the electronic realm. Gaining express consent for a database containing thousands of names will be no easy task. It is going to take a lot of effort for companies to examine their current email lists and confirm that they have received critical consent from each person on their electronic mailing list and specifically, in the right format.