Posted by Stuart Jansen on July 1, 2015
It's been a year since Canadian Anti-Spam Legislation came into full effect. We've had a good amount of time to learn and adapt our e-marketing tactics and processes to remain compliant and relevant, but still, the topic of CASL can be confusing and complicated to many. So, to help clear things up a bit, here are some common questions that we've been asked about CASL, that may also be relevant to you or your campaign.
While we have done heavy research on the topic in order to give you clear and qualified answers, it is always best practice to consult with a lawyer to see how CASL applies to your specific campaign, situation or industry.
Q: Am I allowed to send an commercial electronic message (CEM) asking for CASL consent?
A: If you have implied consent with a contact, you are allowed to contact them via CEM in order to convert them to an express consent. However, keep in mind that if you have an existing business relationship with a client, then they will remain in the 'implied consent' category as long as they continue to do business with you. You may actually be harming your mailing list/database by asking existing business relationships for express consent, because you already had their consent, and stand to lose it. If you do not have consent to send a CEM to a contact, then you are not allowed to send a CEM to receive CASL opt-in. You can ask for CASL opt-in in other ways, like on your website or at a trade show.
Q: I found someone's email address published in a public forum. Can I email them?
A: Yes, if someone has posted their email on a public forum and have not explicitly stated that it is not to be used for commercial electronic messages, then you are allowed to email them as they have provided 'implied consent'. HOWEVER, you can ONLY email them if your email is relevant to their job title, so you must know their job title. "How do I know if my content counts as being relevant to their job title?" If you have to ask, you probably shouldn't email them. Content should be very specifically relevant to the job. For example if a real estate blogger publishes their email stating that they only want to receive emails relating to Mississauga real estate events, you can not send them Toronto real estate events. Every situation is different, so if you are concerned, seek legal advice for your specific situation. If you are purchasing contacts from a database service, don't assume that they have received proper CASL compliance. The onus is on you as the sender to ensure that your mailing list is CASL compliant, so make sure to double-check the database service's practices.
Q: How long does implied consent last?
A: Implied consent lasts for 2 years from the last business transaction. For example: a) if you meet with a potential client at a party on January 1, 2015 and receive their business card, you have implied consent. Assuming you never actually contact them, that implied consent ends January 1, 2017. b) if you have a first-time customer who made their first purchase with you January 1, 2015 and continues to return to you every month until their final purchase from you on July 1, 2015, then you have consent until July 1, 2017; two years after the final transaction date.
Q: How much evidence do I need?
A: Hypothetically speaking, if the CRTC receives 1000 complaints about your emails, they will ask you to prove that you have consent for each one of those email addresses. You must be able to prove that you received clear opt-in consent by informing consumers of who you are, how to contact you, what type of emails they will receive, and that they can opt-out at any time prior to expressly opting in. Alternatively, you must be able to prove that you have an implied relationship with the receiver, or have had an implied relationship within the past 2 years. In both situations you must be able to prove the date and time of consent and how consent was received (i.e. via a purchase, receiving a business card, opt-in through a website, opt-in through a campaign etc.). Ensure that your company is tracking CASL consent in such a way that you collect and store the required evidence; for example, put a date on all business cards you receive, and keep track of when you added someone to your contact list.
Q: If an agency is deploying an email campaign on behalf of a client, who's contact information should be displayed on emails and CASL opt-in forms?
A: You must always display the name and contact information of the company who's mailing list the user is being added to. The question is; who else's information should you include? If an agency was simply producing graphics, or deploying the email with no real say as to the email content or the formulation of the mailing list, then their information need not be displayed for CASL purposes. However, if the agency had been involved in creating the mailing list or the email content, then not only should their contact information be displayed, but they are also equally responsible for the CASL compliance of that campaign.
Q: I am setting up a booth at a trade show. Can I send a commercial electronic message (CEM) to all trade show attendees to come check out my booth?
A: If someone is attending a trade show, then the trade show hosting company has their implied consent, however, you as a trade show vendor do not. The trade show hosting company can send a CEM informing attendees of vendors and offerings, but you as the vendor would need to receive consent to do so.
Q: I have received an email address as a referral, how many times can I try to contact them?
A: If you receive an email address as a referral, then you can only have 1 attempt at contact. If, after that, you receive express consent or have a business transaction (implied consent) you can continue to contact that referral. However, if you cannot manage to obtain any level of consent from your 1 attempt at contact, then you cannot continue to contact that referral.
Do you have a question that we didn't answer here? Let us know in the comments below, and we'll answer it in a future post!
For more information on CASL, contact us or check out our previous blog: "What Every Marketer Should Know About Canada’s Anti-Spam Legislation".