Image Copyright Ozetsky. Courtesy RBG Stock.

Marketers and marketing agencies engaged in direct marketing have questions and worries about Canada’s new anti-spam legislation (“CASL”).

CASL came into effect on July 1, 2014 for direct marketers who send commercial electronic messages (CEMs) to clients, customers, prospects, or referral sources.

What’s a CEM, exactly? A CEM is a message with content that encourages the receiver to participate in some sort of commercial activity, such as buying or selling a product or service, offering an investment, business or gaming opportunity, or promoting an individual who does these things. A CEM can be an email, or a direct message to the recipient via a social media platform or mobile device, if the purpose of the message is to encourage participation in some kind of commercial activity.

CASL applies to CEMs that are sent through or accessed by a computer system that is located in Canada. Technically, messages simply routed through Canada are not subject to CASL. CASL requires three things for these Messages:

– You must obtain consent from the recipient for the message

– You must provide identification information (name, physical address, online address, telephone number) for the sender of the message

– You must provide a clear unsubscribe mechanism (an OPT-IN, not an Opt-Out, mechanism) in the message for the recipient

The largest concern for marketers is the issue of consent, which can be express or implied. Express consent is straightforward – the marketer has documented verbal permission, or written permission, from the recipient to send the message. Implied consent is the more challenging issue, because, under CASL requirements, it must be converted to express consent within a narrow period of time. This presents challenge, but opportunity as well, for marketers.

Implied consent is consent obtained under circumstances that are already direct marketing best practices in the US and Canada, meaning that the message recipient already has a business relationship of some sort with the message sender (they are an existing customer, a customer who has inquired about information, or someone you’ve already communicated with to do business). There is unfortunately no formal definition of the term “implied consent” under CASL – in general terms, it requires a business relationship between the message sender and recipient.

The good news is that implied consent can be converted to express consent, and that marketers have a window, or grace period, of three years to acquire express consent from the individuals on your lists and in your databases today. In the future, marketers will have two years from the time you acquire implied consent to convert that to express consent. And once express consent is obtained from a recipient, it’s permanent unless it’s revoked.

Take these steps to get compliant with CASL in your direct marketing efforts.

Take these steps to get compliant with CASL and avoid pitfalls in your direct marketing efforts:

DO CREATE AN E-MAIL WELCOME OR RE-ENGAGEMENT PROGRAM TO OBTAIN EXPRESS CONSENT

Establish a program of welcome or re-engagement emails to the CEM recipients on the marketer’s list by providing new incentives to subscribe (such as a promotional offer or special content download), and by outlining the benefits to the subscriber for receiving the marketer’s messages – such as early access to special deals, special event invites, etc. Also, set clear expectations during the welcome program about the frequency and content of the CEMs. This is a new opportunity for Agencies to help Clients get in front of customers in new and creative ways.

DO CLEARLY IDENTIFY THE MESSAGE SENDER

Include name, physical address, telephone number, and all other relevant contact information in the CEM, in an easy place for the recipient to see. CASL absolutely requires this.

DO INCLUDE A SPECIFIC OPT-IN BUTTON, AS WELL AS A CLEAR OPT-OUT/UNSUBSCRIBE FEATURE

Gone are the days of obtaining “automatic” consent by simply including opt-out only features in the CEM. For initial welcome or compliance program purposes, the first several messages should contain clear and specific opt-in features. Thereafter, EVERY message must clearly contain an opt-out feature that is clear and easy for the CEM to see and use. Include an OPT-IN button on every CEM sent to a recipient until the marketer has obtained their express consent. Consider, also, including an “opt-down” feature for recipients who want to receive messages less frequently, or who only want to receive specific types of messages (Eg. Offers but not newsletters).

DO NOT USE “FORWARD TO A FRIEND” FEATURES IN CEMs

Messages forwarded, at the encouragement of the marketer, to recipients for whom consent is not or cannot be easily obtained, do not comply with CASL. Do not include a FATF button or feature in the CEM.

DO NOT USE PRE-CHECKED “OPT-IN” BOXES TO OBTAIN CONSENT FROM CEM RECIPIENTS

CASL does NOT allow the sender to obtain consent with a pre-checked box. Do not use them.

DO NOT AUTOMATICALLY ADD ACQUAINTANCES TO THE MARKETER’S EMAIL LIST

CASL requires an actual business relationship be the underlying context for a CEM, and this has long been a direct marketing best practice as well. What about the prospect you meet at a conference or trade show, and who gives you their business card? You might have that person’s implied consent to send a CEM, as long as the message relates to their role or official business capacity, and he or she has not stated that they do NOT want to receive your messages.

DO NOT AUTOMATICALLY ADD NAMES FROM PURCHASED LISTS TO THE MARKETER’S EMAIL LIST

There’s no doubt – CASL will be difficult to implement for marketers who purchase email lists. Marketers will have to obtain express consent from every CEM recipient obtained from the list within the required “conversion” period, and the burden of complying with this requirement may outweigh the benefit of adding these individuals to a CEM mailing list.