Canada Shines a Northern Light on Email

As American marketers, we can sometimes become so involved with our lives and businesses here at home that we don’t stop to think about what’s happening outside of our own borders. But some regulations are coming down the pike that may shake us out of our complacency.

Right now, the international data-driven digital community is preparing for a new wave of regulations as data-driven marketers look to our neighbors to the north. On July 1 Canada’s Anti-Spam Law (CASL) will go into effect and limit marketers’ ability to send emails for commercial purposes.

Charities and political organizations will generally be exempt from the new law. U.S. companies sending commercial electronic messages (CEMs) to Canada must follow CASL’s stringent consent and enforcement requirements. The new law sets up an opt-in, permission-based system for CEMs, including new consent and enforcement requirements. So, if you send transactional emails that include promotional offers, it’s essential that you educate yourself and your email marketing team on CASL.

The CASL website states, “Once the law is in force, it will help to protect Canadians while ensuring that businesses can continue to compete in the global marketplace.” But, the new law will severely limit marketers’ ability to deliver valuable content and offers to Canadian consumers via email or other electronic media.

Consider the effect on:

1. Consent: Potential consumers must “opt-in” to CEMs by providing written or verbal consent. Signed documents, checked boxes on a form, or a written record of verbal consent are all acceptable. Marketers must also indicate the nature of the email (marketing, promotional, newsletters, etc.) prior to asking for consent and must provide an “unsubscribe” option at the end of every email sent.

If you’re uncertain, it may be wise to get express consent prior to July 1, 2014 to continue sending commercial messages. After July 1, 2014, asking for consent via email will be considered a “commercial” email message that is covered under the new law.

2. Current Contacts: Marketers must gain affirmative consent from their existing Canadian contacts before the law is enacted. Any address for which there is no affirmative opt-in will have to be removed. It’s expected that many email lists will be significantly reduced in size as a result.

3. Transactional Emails: Transactional emails are allowed under CASL, but they can’t include commercial or promotional offers unless the recipient has given consent.

4. B2B Communication: Emails sent within the organization and relate to the organization—as a result of an ongoing business relationship—are exempt from CASL. But promotional emails, e-newsletters, and communication outside of the scope of the ongoing business relationship will not be exempt if encouraging the recipient to purchase a product or service. Further, simply providing a hyperlink or logo in the e-signature will not constitute a CEM; however a tagline that encourages the recipient to purchase a product or service will constitute a CEM.

5. Penalties: Violators can face up to $10 million in fines.

Currently, CEMs are defined as electronic messages that use text, audio, or visual to encourage participation in a commercial activity. Examples include email, SMS, and instant messaging. CEMs don’t include robo-calls, faxes, blogs, Facebook, or tweets.

What can marketers do to adapt to CASL?

1. Learn. Understand the new rules and regulations governing CEMs, especially those dealing with consent. Also, review your current email and electronic marketing campaign with legal counsel to ensure compliance with CASL’s regulations.

2. Adapt. Keep strict records of your email data to track express or implied consent. Businesses will have until 2017 to convert implied consent to express consent, but cannot send an email requesting consent after July 1.

3. Grow. Continue to develop relationships with opt-in consumers.

Of course, just as you’ve been doing under CAN-SPAM, you should never send deceptive or misleading subject lines or “from” email addresses and names. Additionally, in email communications, you must maintain a valid postal address in the email and one other method to communicate with the sender: a Web address, email address, or phone number.

DMA’s A Digital Marketer’s Guide to Canada’s Anti -Spam Law lays out all of the relevant material in a user-friendly format. In the end, however, it’s vital for marketers to consult legal counsel to ensure that their programs are meeting CASL’s requirements.

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