04 Jun, 2014

Canada's Anti-Spam Legislation (CASL) and how it affects you

Touted as one of the most aggressive anti-spam laws in the world, as of July 01, 2014 any individual or business sending commercial electronic messages to Canadians, without their consent, will be violating the legislation. Penalties will be up to $1 million for an individual violating the legislation, and up to $10 million for a company.

This legislation applies to emails, text messages, and social media messaging. Any business or individual sending commercial electronic communications e.g. newsletters therefore needs to take notice—the rules are changing. These changes may seriously impact your day to day business activities unless you already comply with the definitions of consent.

Of course, this legislation will really only be enforceable in Canada-to-Canada communications; it's proved impossible to regulate external spam and nuisance telemarketers located outside the country, for example, the failure of the Canadian Do Not Call list.

So, while the objective of protecting Canadians from spam including phishing scams; spyware/malware; identity theft etc. is admirable, ultimately Canadians will still receive copious amounts of spam from outside the country—and hitherto unknown relatives wanting to bequeath you millions of $'s.

The CASL defines two types of consent—implied and express.

Implied consent is where a previous relationship exists, even if no consent has been formally requested. However, there is a time limit for this transitional stage—36 months from July 01, 2014. During this transitional phase express consent must be sought if none currently exists.

Express consent must be sought from a recipient either in writing or orally, and the person requesting the consent must be able to furnish proof this was obtained legitimately. Pre-checked boxes on a website indicating consent is given will not be allowed—an opt-in mechanism must be adopted, as opposed to an opt-out. If express consent exists before the legislation begins it remains valid, and does not expire until the recipient withdraws their consent.

Commercial electronic messages must also include the reason for the communication, and full contact information, including mailing address, of the individual or company who are sending the electronic message, plus include an unsubscribe function.

Of course, many email users already operate spam filters, and anyone using Gmail, either the free or paid service, already benefit from fairly sophisticated spam filters. So the legislation, which has taken several years to bring to fruition, may not be as groundbreaking as originally envisioned.

July 01, 2014 is not far away. Many businesses do not know that this legislation is coming, and coming fast. Individuals and companies sending commercial electronic messages from Canada Day onwards will need to comply, have proof they comply, and adjust their electronic marketing strategies accordingly.

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