Creative thinking that delivers results

31 May

Is your business ready for CASL?

Category: Email marketing
Written by: Ian Turner
CASL, email marketing, digital marketing, online marketing, spam

It’s been three years in the making, but the July 1st finish line for the implementation for Canada’s Anti-Spam Legislation (CASL) is quickly approaching. Many businesses may be worried, thinking they may not be prepared and fully compliant. How about your company ready? This blog will outline some of the key changes upcoming so you can assess where your business stands.

If you’re looking for a detailed account of the impending July 1st changes to CASL, we would recommend you read an excellent article by the Canadian Marketing Association (CMA) titled CASL Update: What You Need to Know Before July 1st.

What’s changing

The big change taking place on July 1st is that the three year transition period, which commenced on July 1st, 2014 with the initial introduction of CASL, is coming to an end. This means that CASL will now be fully implemented and can be fully enforced. There will no longer be any grandfathering of the laws and requirements around CASL, particularly as it applies to the issue of "implied consent".

Of particular significance is the treatment and definition of implied consent post-July 1st. The parameters around this item were quite flexible over the past 3 years. Starting July 1st implied consent will refer strictly to those customers who have purchased from you in the past 24 months or who have made an inquiry with your business in the past 6 months.

CASL’s Private Right of Action (PRA)

As we indicated earlier, enforcement of CASL through the Private Right of Action (PRA) will be one significant change post-July 1st. Any business engaged in email marketing and other commercial electronic messages (CEM) will have to abide by the letter of the law or pay the legal consequences, which would include fines as in the past but could now also involve lawsuits (including class action).

PRA provides individuals with significant monetary remedies if they have received non-compliant CEMs from a company. Another new element that comes into force on July 1st is the provision for both actual and statutory damage claims under PRA.

This could result in sizable claims and lawsuits against a business deemed to be spamming individuals. The CMA article noted above provides a detailed descriptions and explanations for both of these types of damages.

Enforcement of CASL

As noted above, another change expected on July 1st will be the more stringent enforcement of this law by the various government bodies - the Canadian Radio and Television Commission (CRTC), the Office of the Privacy Commissioner and the Competition Bureau.

All three have put their toes in the water when it comes to enforcing CASL and can now move forward more confidently, having successfully charged companies in the past three years for wrongdoings. This could result in more frequent and steeper fines and penalties for firms that break the law. How far down the totem pole the regulators will go to enforce CASL is the big question no one really knows at this time.

Next steps

It’s pretty clear from the above review that the terms of engagement when it comes to email marketing and all electronic messages in Canada will be stepped up considerably when CASL comes into full force on July 1st.

Businesses of all sizes that use these media for their marketing are encouraged to reach out to their legal counsel, marketing agencies and other professionals when navigating this evolving landscape to ensure they are fully compliant with this law and have the necessary policies and procedures in place to perform these marketing activities with minimal risk or concern.

Small and medium-sized businesses are reminded first and foremost that to be compliant, they must utilize a formal email (CEM) marketing service that allows its customers to unsubscribe from these messages. If they don’t, they’re leaving themselves vulnerable to being a target for enforcement.

Let us know if we can help you get your business CASL-compliant or assist in improving your email marketing campaigns and results.

Important Note:

The CMA lobbied the federal government to reconsider certain aspects of this legislation prior to the July 1st implementation date. In particular, the association was concerned with the legal and financial implications related to enforcement of the Private Right of Action (PRA) component of this law.

On June 7th, the the Federal Minister of Innovation, Science & Economic Development  announced that the PRA provision for Canada’s Anti-Spam Law (CASL) has been indefinitely suspended, and thus will not take effect as scheduled on July 1, 2017.

The CMA spearheaded a business coalition with the Canadian Chamber of Commerce to communicate their widespread concern to government policy-makers about the anticipated negative impacts of the PRA, including the provision for class action lawsuits. For more information on this announcement, please visit the CMA’s website.