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How to avoid a million dollar email mistake

The Canadian Anti-Spam Legislation, which has also been dubbed the strictest SPAM law in existence, has finally gone into effect as of July 1st, 2014. This legislation has gotten a lot of marketers in a tizzy not only because of how strict it is, but also because the monetary penalties for breaking this legislation are severe. You can rack up MILLION dollar fines if your emails don’t comply with CASL. The new regulations surrounding this law are incredibly strict, however there is still a ton of confusion circulating email marketers on what is and isn't SPAM under this new law. Regardless if you live in Canada or not, there is a great chance that you are sending to Canadians if you have a global list (like we do) or are located in North America. That’s why we are going to break down the major points surrounding this international legislation so you don’t screw the pooch when sending your emails. Before we start digging into our topic I must give this disclaimer: this blog has been written simply to inform you and not to offer any sort of legal advice. I am not a lawyer, just a fellow marketer with some friendly information. Enjoy!

CAN-SPAM vs. CASL

First things first: CAN-SPAM is NOT the same thing as CASL. The main difference between these laws is that CAN-SPAM is an opt-out law whereas CASL is an opt-in law. Under the CAN-SPAM law, you can “presume” consent when adding someone to your email list. If they don’t like it, they can opt-out. This is seen when marketers use a pre-checked box on a form that automatically adds people to their mailing list even if said people were only filling out a form to submit a donation or make an inquiry. CASL functions as an opt-in law because you cannot presume consent with pre-checked boxes. You must gain consent through an opt-in mechanism where the subscriber has to take a positive action to give consent. An example of this would be giving a blank checkbox on a form which a user would have to mark off if they wanted to opt-in to start receiving mailings from you.

What’s a CEM?

CASL applies only to commercial electronic messages, which are referred to as CEMs. Under CASL, a “CEM is a message that encourages participation in a commercial activity, including, but not limited to: offering, advertising or promoting a product, a service or a person.” In layman’s terms, if your email is pitching something and encouraging commercial activity, your email is considered a CEM. Even a transactional email can be considered a CEM if it contains cross-selling. CEM’s come in more forms than just email! SMS messages, instant message accounts and messages to social media accounts fall under the umbrella of a commercial electronic message. This is a screen capture from the CRTC website.

3 things your email MUST have under CASL

Before we get into the fine print of this legislation, the broad strokes of this law focus on these three things when sending a CEM:

• Consent: You must have express or implied consent to send a CEM.
• Identification: Clearly identify the individual and business sending the CEM. You must also include your physical mailing address and contact information.
• Unsubscribe option: You must have an unsubscribe button/mechanism (no surprise there).

Now let’s get into what consent means and the difference between express and implied consent.

Has your subscriber given you implied or express consent?

The law came into effect on July 1st, 2014, as well as a transitional provision that surrounds the consent requirement. Right now, you can continue to send to people on your list that have given you express OR implied consent, but as of July 1st, 2017, you can ONLY send to people that have given you express consent. Below is a breakdown of subscribers that fall into the categories of express or implied consent:

• Express consent - The subscriber clearly told you (written or verbal) that it is OK to send them CEMs. This would mean they opted-in by actively checking off a box to receive communication from your company. Express consent never expires unless they withdraw their consent.
• Implied consent - They didn’t specifically tell you that it’s OK to send them CEMs, but what they did (e.g. made a purchase or downloaded a marketing guide) implies that it’s OK to email them for a while. A person must have done business with your company within the last 24 months for their consent to be considered implied.

During the 3 year transition period, you can continue to email to people/businesses you have been emailing previous to July 1st, 2014. During this 3 year period, you must gain express consent from your implied consent subscribers, or you can no longer email them after the 3 year grace period expires.

How to ensure “expressed consent” for your mailing list

The only way you will know that your new subscribers have expressed consent is by changing your opt-in forms immediately. When re-doing your form, be sure and lose the pre-checked boxes that only imply consent. Moving forward, your opt-in forms should have the following qualities:

• Be crystal clear about what you are asking the subscriber to opt-in to.
• Indicate your company name.
• Obtain express consent. This can be done by having them check a box to indicate consent on your opt-in form.
• Let your subscriber know they can unsubscribe at any time.

Below is an example of an opt-in form that complies with CASL and ensures you have express consent: This is a screen capture from the CRTC website. Now that you know how to opt-in someone under the proper guidelines, it’s time to figure out what you can do with existing subscribers that fall under the category of implied consent. If you don’t have express consent yet, you don’t have to scrub all these people off your list immediately or stop sending to Canada altogether. Instead, start sending out an express consent campaign. In this email you will explicitly ask the subscriber to give consent to receive future mailings. This can be done through a link or new form. If they do not give their consent, remove them from future mailings. Keep in mind, an express consent campaign cannot encourage commercial activity in it. The purpose must strictly be to gain consent, and nothing more.

And if you break the rules…

During the 3 year transitional period, the Canadian Radio-Television and Telecommunications Commission (CRTC), the Competition Bureau, and the Office of the Privacy Commissioner of Canada will oversee issues with companies that do not adhere to CASL. Once the grace period ends on July 1st, 2017, any individual can sue any entity if they believe they are receiving SPAM. When someone complains of SPAM under the CASL, the CRTC will review the case based on the following factors:

• If you made money while sending the email in question
• Your history with CASL
• How severely you violated the law
• Your ability to pay a penalty

Fines for individuals can go up to $1 million and companies can get slapped with a $10 million penalty if they break the rules. I think that gives us all 10 million reasons to get in line with CASL!

Remember: Quality over Quantity

While these new laws and penalties seem pretty severe, it’s not all bad news. We have always advocated quality over quantity when it comes to email lists. While you should care about gathering leads, what you really need to hone in on is gathering qualified prospects to ensure you are emailing people that actually want to hear from you. By complying with CASL and only sending to those that have given express consent, you will help your email metrics, your deliverability and your wallet. Comment below if we missed anything about CASL and the implications it will have on your email.