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Getting Ready for Canada's New Anti-Spam Law (CASL)

This coming Canada Day will see celebration from more than just your neighbors...and despair from many others. Approved back in 2010, Canada’s Anti-Spam Legislation (CASL) – Bill C-28 – is a law set to crack down on e-mail and text marketing, applying not just to standard for-profit businesses but also to charities and non-profits. Essentially, businesses sending mass e-mails, tweets, and most other commercially-minded electronic messages will be forced to either (a) prove their consent to send those messages to potential customers, or (b) stop entirely.

As expected, small businesses will be the ones that struggle most with this, seeing as so many of them simply don’t have the resources to make the change to the more expensive direct mail tactic. This is intensified by the fact that the bill sat in limbo for so long – as many bills do – and was finally announced to go into effect with only six months for businesses to arrange compliance with the changes.

But forget the griping; it doesn’t help anyone. What to understand is that these laws are coming, and if your business doesn’t comply you could face a $1 million fine for a CASL violation...and that’s just for an individual breach. Full-on companies could see a $10 million fine for a violation. (Yes: ten million dollars.) On top of that, an addendum will come into effect on July 1, 2017 that allows people to bring up class action suits for damages caused by a CASL violation. They – and by “they” I mean the Canadian Radio-Television Telecommunications Commission (CRTC), the Competition Bureau, and the Privacy Commissioner’s office, all three of whom will be the actual enforcers of this law – aren’t joking around.

The three key points you need to know:

  1. Posting an item on social media is still allowed. (Phew.) But if you use a social media account like Twitter, LinkedIn, or Facebook to send a commercially-minded email, that constitutes a message that would be punishable under CASL.

  2. To get the consent you need, customers you’ll try to reach by electronic means have to opt-in themselves by July 1. Basically, that means that the customer must click one of those boxes that says something like “Keep sending me news and updates from ________.” The customer also has to be given the option to unsubscribe from future emails. If you or your business doesn’t give these options and you still keep sending the (supposed) customers commercial emails, that’s a violation. Other than that, consent must be written or oral, and though it can be implied through an existing business relationship, that implied consent “ends two years after the business deal ended.”

  3. Though CASL’s liability extends to any director or agent of a company that violated the law – i.e. if they wittingly or unwittingly authorized anything of that nature – you can fight the penalties if you prove that you have exercised “due diligence” to prevent such violations. In other words: document your strategy.

You can find some (some) answers about CASL here. For now, the best thing to do is read up and adjust your practices...while you can.

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