On July 1st Canada's new anti-spam legislation arrived with great fanfare and was met with dread from the digital marketing community. It has been four months since the new rules came into effect and there are still many marketers struggling to understand the implications for their marketing lists. If you haven't already done so, now is the time for a review of your organization's marketing processes to ensure that you are set up for CASL compliance success *.

What Is CASL And How Does It Affect My Marketing?

Canada's new anti-spam legislation requires all Canadian and International businesses sending CEMs (commercial electronic messages) in Canada (including emails, text messages, instant messages, social media messages, automated phone messages...) to:

  • Obtain express consent prior to sending CEMs
  • Provide clear sender identification information in all messages
  • Provide an unsubscribe mechanism in all messages

    Attention US/International Marketers: If you were under the impression this legislation only applies to Canadian companies you are mistaken. All businesses sending CEM's to individuals in Canada are subject to the new rules.


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    Step 1: Assess Your Marketing Activities

    Take a look at your current and past marketing campaigns and how you interact and sell to incoming, currently active and past leads. For each marketing activity, make careful note of how you capture/captured the data and what you communicate/communicated.

  • Email Newsletters
  • Lead Nurturing
  • Email Offers
  • Landing Pages
  • Text Messages

    Essentially anything that creates a marketable list

    Step 2: Update your current forms and templates to comply with the new rules

    Make sure you are including an unchecked opt-in box and a clear consent statement on all forms.

  • Include sender information (name, physical address, and one of the following: phone, email address or website).
  • Include a clear unsubscribe mechanism in your marketing emails and make sure you have a process in place to respond to unsubscribe requests within 10 days.

    Step 3: Look Closely At Your Lead/Marketing Database And Review Each Record

  • How did you obtain their contact information? Identify the campaign or source.
  • What version of the form/template did they complete?
  • Did they consent to receive marketing communication from you?
  • What type of consent did they provide?
  • In the event you are audited, can you produce records that prove you obtained consent?

    Step 4: Determine What Type Of Consent Your Contacts Have Provided

    Express Consent

  • Express content requires that a recipient must proactively OPT-IN to receive future CEMs. Once you obtain express consent you can continue to send CEMs to these contacts indefinitely until they specifically indicate they wish to unsubscribe.
  • It is no longer acceptable to include pre-checked boxes on forms or automatically combine consent with another offer. Including pre-checked boxes on landing pages/forms was common marketing practice for many businesses. It is important that you review all forms and identify contacts that previously submitted forms with pre-checked boxes - these contacts do NOT qualify as having provided express consent.
  • You will need to track and record when a new contact is added to your database, what landing page they saw, what forms they submitted and whether or not they opted-in to receive future CEMs from your organization. As you collect the consent you will have to ensure you create clear and auditable records.

    Implied Consent

  • Implied consent applies to contacts that have an existing business relationship with a company. This falls into two groups:

    Group A: Current customers, previous customers, industry associations with members, partnerships, other types of business agreements or prospects who downloaded content in exchange for an email address.

    Group B: Prospects who asked for quotes/information via an online form, phone inquiries, provided you with a business card or interacted with you at a tradeshow.

  • The Good News! Effective July 1, 2014, for all new contacts acquired in Group A you have 2 years and 6 months for contacts in Group B to secure express consent. You can continue to send CEMs during these timeframes.
  • Even Better News! All the contacts you obtained before June 30, 2014 with Implied Consent (both Group A and Group B) are subject to an extended 3-year transition period. This means you have until July 1st, 2017 to secure express consent and you can continue to send CEMs to them until that date.

    Unknown/other/ 3Rd Party Without Consent

  • As of July 1, 2014, you can no longer send any CEM's to contacts that were obtained from unknown or other sources where there is no record of any type of consent or pre-existing business relationship. All these contacts should be archived or purged from your list.

    Step 5: How Am I Supposed To Keep Track Of All This?

    Keeping your data well organized is the key to success. Separate your existing contact base into manageable groups.

  • Canadian Contacts that provided Express Consent prior and post July 1, 2014 AND you can prove express consent was obtained.
  • Canadian Contacts that provided Implied Consent BEFORE July 1, 2014. (You can also include contacts that provided Express Consent but you do not have proof in this group.)
  • Canadian Contacts that provided Implied Consent AFTER July 1, 2014.

    o Group A as defined above. Prospects can remain in this list for up to 24 months.

    o Group B as defined above. Prospects can remain in this list for up to 6 months.

  • TIP: It is important you retain the exact date the consent was provided for all contacts and a sample of the form/template they completed. In the event of an audit or a complaint, the onus is on the business to prove they obtained express consent.
  • TIP: If you are using a marketing automation solution such as Hubspot, Marketo or Eloqua, you can easily use a series of lists to track CASL Compliance.

    o When a new contact is added to your contact database, set up a series of automated workflows to add them to the appropriate CASL consent list.

    o As prospects provide Express Consent, they can be automatically moved from one list to another.

    o On a monthly basis, you can use the date added field to identify the Implied Consent prospects that need to be removed from your database at the 6-month and 2-year expiration mark.

    But What If All My Recipients Are Non-Canadian?

    If you are in Canada and sending CEMs to a foreign state you don't have to abide by CASL, but you do need to follow anti-spam and privacy laws specific to that foreign state. These contacts can be retained in a separate list.

    * DISCLAIMER: This is a new legislation and we are not lawyers. While we have made every reasonable effort to ensure the information we provide is accurate, it should not be relied on as legal advice and is in no way meant to replace specific legal advice from your lawyer.