How does Canadian Spam Legislation affect public and stakeholder engagement?

spam

What is the Canadian Anti-Spam Legislation (CASL)?

Canada’s new anti-spam law regulates “commercial electronic messages,” which are emails, text messages, social media messages, and other video/audio/image/text messages that encourage commercial activity. CASL is intended to protect Canadians from unsolicited email, malware, spyware, identity theft, and other “electronic threats.”

With strict penalties for violating CASL, it is worth taking a closer look at what this legislation could mean for engagement professionals.

 

How could CASL affect engagement?

Because the definition of commercial electronic messages is broad, CASL could apply to public engagement activities.

Commercial activity is defined in CASL to mean “any transaction, act, or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so with the expectation of profit.”  Common business activities, including sending emails to customers or members, are subject to CASL.

You might be affected by CASL if you are…

  • Involved in electronic marketing.
  • A business, like a developer involved in property sales or a software company selling online tools.
  • A consulting company working on behalf of a local government.

The regulation exempts situations where people have a pre-existing family, personal, business, or non-business (club or association) relationship within the last 3 years. It also exempts referrals between people with an existing relationship (i.e. putting your colleague in contact with a salesperson).

 

Can’t I continue to offer “opt out” options for people on my mailing list?

No. CASL means that Canada is moving away from “opt out” to an “opt in” consent system.  This means that commercial messages are prohibited, unless someone has given his or her express or implied consent.

 

What is the relationship between CASL and PIPEDA?

The Personal Information Protection and Electronic Documents Act (PIPEDA) describes how private sector organizations may collect, use, or disclose personal information. PIPEDA also applies to federal employees’ personal information. The law gives individuals the right to access and request correction of the personal information these organizations may have collected about them. Provinces have their own privacy legislation as well.

CASL has a higher threshold for collecting people’s personal information and for getting their consent to send commercial messages. Canada’s new anti-spam legislation will come into force on July 1, 2014. For the subsequent 3 years, consent will be implied for existing business relationships.

 

What information needs to be included in commercial messages under CASL?

CASL is intended to protect Canadians from unsolicited email, malware, spyware, identity theft, and other “electronic threats.”

  • Include the sender’s information (name and mailing address, plus email or phone contact). If you’re sending a message on behalf of a third party, be sure to include their information, too.
  • Describe how to unsubscribe from the messages. The unsubscribe process should be free, simple, and quick, completing unsubscribe requests within 10 days. 

Express consent must be separated from other requests. In other words, consent cannot be bundled into consent on terms and conditions, terms of use, privacy information, or other areas.

 

What steps can I take to better comply with CASL?

The following easy steps can help you send better commercial messages:

  • DO Clearly describe that you need consent to send electronic messages and what the purpose of these messages will be.
  • DON’T Don’t forget to state that consent can be withdrawn anytime (and describe how to do so).
  • DO Use a commercial email program, like MailChimp, ConstantContact, or Eply to manage unsubscribe and required information for you.
  • DON’T Use a mailing list unless participants have expressed consent to receive messages from you on a certain project.
  • DO Continue to use social media to post links and updates,
  • DON’T Direct-message followers unless they contact you first.
  • DO Carefully review your paid online advertising materials to ensure that they comply.
  • DO Continue to offer good customer service online. Responding to requests, inquiries, and complaints is exempt from this legislation.
  • DO Keep sending paper newsletters, surveys, postcards, flyers, and questionnaires, etc. These are not covered by the legislation.

We’re not lawyers, so ask for legal advice if you’re not sure. As of writing, a non-binding Regulatory Impact Analysis Statement issued by the Minister of Industry suggested that “commercial electronic messages” does not include certain types of messages (such as surveys, newsletters and messages involving a pre-existing commercial relationship or activity that is already underway). However, it is unclear whether the regulatory enforcement agency agrees.