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Posted by Stuart on April 22, 2014

Canada’s Anti-Spam Legislation (CASL), was passed in December 2010 and is effective July 1, 2014.  The new law, Bill C-28: Fighting Internet and Wireless Spam Act (FISA), establishes requirements on those sending marketing emails, short message services (SMS), and instant messages (IM), to and from Canada.

Full legal text is available at: http://lois-laws.justice.gc.ca/eng/AnnualStatutes/2010_23/FullText.html

So how does this legislation affect us as marketers? Social media apps and cell phones have allowed us to reach consumers directly through texts, video apps, and emails. If you’re planning on using these media then these laws apply to you. We’ve taken the time to summarized the main themes of this legislation, and narrowed it down to the points that are relevant to you.

The main theme of this new Canadian law is that it requires consumer consent, unlike the CAN-SPAM Act in the U.S., which does not.  Any marketer sending a electronic message to an email address or phone of a person who resides in Canada will need consent to do so, either implicitly or explicitly. FISA defines explicit and implied consent as follows:

Explicit consent is when the recipient provides permission to the sender to send them messages, such as a web page sign-up form.

Implied consent comes in the form of an existing business or non business relationship between recipient and sender.  A business relationship is considered when a customer purchases a product/service or enters a contract.  A non-business relationship is when your customer does volunteer work for you or becomes a part of your organization.  Implied consent is stated to last up to 2 years after it is implied.

Once you have consent you should ensure all promotional emails include:

  • Company contact information such as name, address, email and phone number
  • Clear identification of who the sender is including physical address of the sender
  • An obvious unsubscribe mechanism such as a link in your email or a working reply-to address where requests are read and processed
  • Unsubscribe requests must be processed within 10 business days from time of request
  • The unsubscribe mechanism must remain intact for that electronic message for 60 days after its send date.

You may ask “How do I know if who I am sending to is in Canada or not?”  This is going to be a big challenge if you are sending electronic messages without clear consent based on the definitions stated by FISA.  Simply stating you didn’t know where the person lived will not hold up as a defense in court so it is important, if you haven’t already started, to gather more information at time of sign-up.

Here are some recommendations to make sure you are complying with this law:

  1. Start storing sign-up information such as an IP address which can be traced back to the email address at time of sign-up.
  2. Ask subscribers about their location at point of sign-up.
  3. Segment out domains you know are Canadian like a .ca extension or known popular domains such as Shaw, Sympatico, Rogers and Telus.  Do not assume that people under other domains are outside of Canada, but it is a good start.
  4. Use opt-in consent (if using implied consent, get explicit consent during the 2 year window).
  5. Include both an unsubscribe link as well as a working email address for redundancy.
  6. Assume that all your email addresses are Canadian. It is better to be over-prepared.

Penalties for not complying with FISA can create fines that range from $1 million (individual) and up to $10 million (organizations).

Most of the Act will begin to take effect on July 1, 2014. On January 15, 2015, sections of the Act related to the unsolicited installation of computer programs or software come into force, and the Private Right of Action provisions will come into force on July 1, 2017.

There is a 3-year transitional period that starts when the legislation enters into force during which consent to send commercial electronic messages is implied in the case of pre-existing business and non-business relationships. Similarly, consent is implied for the same period for the installation of updates and/or upgrades to computer programs. Note, however, that this period will end if the recipient of the commercial electronic messages, says that they don’t want to receive any more commercial messages, or if the person whose system the update/upgrade has been installed on withdraws their consent to such installations.

Are you planning an electronic messaging campaign? Let’s talk, and see how BTI Brand Innovations can help make your campaign a success.