Canadian Anti-Spam Legislation (CASL) before and after July 1, 2017

Are you a Canadian marketer that's been hearing a lot of talk about the Canadian Anti-Spam Legislation (CASL) changes on July 1, 2017? If you're uncertain and confused about what's going on - trust me, you're not the only one! We found CASL cumbersome and complex to understand, too. But after much research into reliable sources, we now have a good grasp of the requirements. To make it easy for you (our dear readers) to understand the changes to CASL and the new responsibilities for Canadian marketers, we've broken down the basics of everything you need to know, below.

(However, we would like to stress that this is not legal guidance, and for legal advice regarding CASL, you should consult your lawyer.)

Big-Picture Changes to CASL as of July 1, 2017

July 1, 2017 marks the end of the transition period of CASL.

During the transition period (July 1, 2014 - July 1, 2017), Implied Consent rules were significantly more flexible.

During this time, organizations were allowed to send Commercial Electronic Messages (CEMs) to anyone with whom they had an Existing Business Relationships (EBR) or Non-Business Relationship (Non-EBR) prior to July 1 2014.

Also during the transition period, companies were allowed to message contacts that had “conspicuously published” their email address (eg. showcase their email publicly after a blog they wrote).

Sources: 2^nd paragraph, Transition Period, David Young Law. Transition paragraph, Canadian Govt site, “During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods of 2 years or 6 months, that would otherwise be applicable under section 10 of CASL.”

After the transition period (July 1, 2017), Implied Consent rules are less flexible.

Organizations are only allowed to send CEMs to EBRs and Non-EBRs if they:

1. Purchased a product or service within the past two years
2. Accepted a business, investment or gaming opportunity within the past two years
3. Entered into a written contract within the past two years
4. Inquired or applied for a product or service within the past six months

*Also, companies are no longer allowed to email contacts that have “conspicuously published” (eg. showcase their emails publicly after a blog they wrote). Source: Infographic, Canadian Govt.

Express Consent rules do not change

Whenever you request email opt-in from a contact, the following are still required:

1. When requesting consent, the purpose for obtaining consent is clearly and simply stated, eg "subscribe to our enewsletter to receive quarterly emails related to technology, marketing, and new cloud software".
2. The sender or the person on whose behalf consent is requested is identified by their name, mailing address, and either a telephone number, email address or web address
3. The recipient is informed that they can unsubscribe at any time
4. Consent must be opt-in, not opt-out
5. The evidence of express consent is retained. For example, file their IP address, date and time of opt-in.
6. Consent cannot be bundled with consent for Terms and Conditions

Source: Compliance and Enforcement, Canadian Govt

Valuable Tip: “Express consent does not expire, after a certain period of time has passed. Even if you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. Express consent does not expire, until the recipient withdraws their consent.” Source: Transition paragraph, Canadian Govt site.

*For more information related to CASL, check out our recent blog: New CASL Rules in Effect July 1, 2017 Canadian Anti-Spam Legislation

A recap and more detail:

• During the transition period, companies could contact Implied Consent contacts gained at any time prior to July 1, 2014(eg. even if a company sold something to their customer 50 years ago, they could still send emails to them during the transition period).
• During the transition period, there was a leeway that stated any Implied Consent contacts gained after July 1, 2014 can be messaged for only 3 years.
• Now that the transition period is over, Implied Consent contacts can only be messaged for 2 years or 6 months (depending on the type of relationship you have with them). For example, you may email existing customers for 2 years from their purchase date, but you may only email someone that inquires about your service for 6 months from their date of inquiry.
• Contacts that provide Express Consent can be messaged indefinitely until they unsubscribe.

*Disclaimer: It is important to understand that these notes are our interpretation of the legislations, and based off of pure research. GamePlan Marketing do not intend to provide legal counsel, and if you are uncertain of any rules related to the Canadian Anti-Spam Legislation, we recommend reaching out to your lawyer.

GamePlan Marketing is a Full-Service Creative & Digital Agency located in the Oakville, Greater Toronto Area in Canada. We Specialize in Digital Marketing for B2B Technology Companies.

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