How to Get Subscriber Consent for Canada’s Anti-Spam Law

Consent requirements for Canada's Anti-Spam Law UpdateAn important piece of legislation will go into affect on July 1, 2014 that will impact many email marketers. The Canadian Anti-Spam Law (CASL) is updating some of its provisions, and it’s vital you understand how to comply with coming changes. One of the main tenets of the update requires gaining affirmative consent to send any email to a subscriber. This means you can’t send any messaging without the subscriber first opting in. This consent falls into two categories according to Canadian legislation:

Express consent

  • The subscriber opted in through a compliant opt-in form to receive marketing messages from your organization.
  • This consent never expires unless revoked by subscriber.

Implied consent

  • The subscriber has an existing business or non-business relationship with your organization.
  • This consent expires after two years, but you can seek express consent during this time.

In reference to implied consent, an example of a business relationship would be someone who has made a purchase from you. An example of a non-business relationship might be someone making a donation to you or volunteers if you’re a non-profit.

It’s important to keep records of express and implied consent for subscribers. According to CASL, in the event a subscriber complains, the sender (you) is required to provide proof of consent.

Let’s dive into the specifics of express consent.

Express consent must be obtained via a CASL-compliant opt-in form. Wondering if your current form works or if you’ll have to create a new one? Here’s the goods on what the Canadian law requires you to include:

An affirmative action taken by the subscriber to sign up.

  • Entering an email address and clicking submit.
  • Checking a box requesting emails and clicking submit/continue. Note: A pre-checked box is not an affirmative action.

Clear indication the user is requesting – and knows he or she will receive – commercial email from you.

A statement saying the user can unsubscribe at any time.

The identity of the organization sending the email.

At least one piece of contact information.

  • Physical address (Yes, a P.O. Box works!)
  • Website address
  • Email address

The last part of consent requirements we’re going to cover is message content. As with CAN-SPAM, CASL also requires certain elements be included in the body of any Commercial Email Message (CEM). These include:

Clear identification of the sender (you).

  • Identify all involved parties if sending on behalf of a third party, unless any party had no part in determining the target list or content.

A working method to contact the sender.

  • Ditch the “No-reply” from address; it doesn’t comply with CASL.
  • A physical mailing address can be used.
  • A functional, regularly-monitored email address works best.

A working unsubscribe method.

  • Must be functional for at least 60 days after the message is sent.
  • Must not incur any costs, e.g. subscribers charged when replying.
  • Can be either an electronic address (email) or a hyperlink.
  • Sender must process requests without delay (10-day maximum).

That covers the consent requirements for CASL. To make it easier for you to comply, we’ve converted the information from this blog post into a downloadable checklist. This resource also includes additional information including knowing if CASL affects you, the violations and penalties, and an in-depth Q&A. Get it for free now!

Joy Ugi
Digital Marketing Coordinator, WhatCounts
Twitter: @ugigirl

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12 Comments

  1. Hi, Wondering if you can help. With “implied consent” is them just “doing business” with us enough? The majority of our email lists are just from our CRM (clients who have purchased things from us, or had a service with us), but they’ve never specifically said “yes, I want to receive emails”. They’ve received emails in the past, had the option to unsubscribe if they wanted to. Does this fall under implied consent?

    Thank you,

    Reply
    • Apologies for the late response. Yes, people who have purchased products or services from you in the past are covered by the CASL implied consent rule. However, keep detailed recorded of those who are opted in under implied consent. If one of these people complains, the Canadian government can investigate, and you’ll want to have all your ducks in a row. Additionally, remember that those opted in under implied consent guidelines are only opted in for two years, after which time you must provide proof those people opted in via express consent. If you can’t get the implied consent subscribers to give you their express consent, you must unsubscribe them from your lists. Hope that wasn’t too confusing and helps you determine next steps.

      Reply
    • Hey there, Allie. This is an example of a company being proactive about making sure all their subscribers have given express consent to receive emails from the company. For example, there may be subscribers on this list who have been on it for two years via implied consent. Once July 1 rolls around, Canada expects these people to be opted in via express consent.

      You can send a similar message to your Canadian subscribers – or to your whole list if you want. The link should go to your preference center where subscribers can confirm they still want to receive email from you. The remaining Canadian subscribers who haven’t opted in by July 1 should be removed from your list by that date.

      Reply
      • These are my interpretations of the law, and you should consult your legal council for a more definitive answer for your particular business.

        Reply
  2. Adding to the question above, if we currently send promotional emails to individuals who have not purchased products or services from us, do we have an implied business relationship with them? We purchased a mailing list that is directly related to our industry, some on the list have worked with us, some have not, but all have received emails from us. Do they all have an implied business relationship with us because they have received our emails, or, do only those that have purchased from us have an implied business relationship?

    Reply
    • They do not have an implied business relationship with you just because you send to them. That’s the danger of buying lists – some people may be opted in, but the majority may not be. All the Canadian subscribers on that list must be opted in by July 1st.

      Remember, this is just my thoughts on the matter – I would definitely consult your legal council if you have more specific questions, Dave!

      Reply
  3. Hi Joy,

    We received our emails from surveys we conducted. Is that ok?

    Thanks

    Reply
  4. If we’re not a big corporation and we don’t have the system for people to click Yes or No for subscriptions, can we simply ask if they don’t want to be receiving emails to simply reply to the email and not replying implies you wish to continue receiving emails? Is that okay by law?

    Thanks!

    Reply
    • The way my office has interpreted it, you need to do it the opposite way. (Opting-in vs. opting-out…a person therefore would have to reply in the affirmative in order to continue receiving emails.)

      That’s how we’ve been told to handle it…we’re sending emails to all of our clients asking them to opt in to continue receiving information – they actually have to click on a link to confirm their acceptance otherwise we’ll remove them from the list.

      A pain for sure, but just my two cents!

      Reply
  5. Hi Joy.
    I was wondering for smaller companies if sending an email saying that if you no longer wish to receive emails from us to reply saying so and if you wish to continue receiving emails to disregard the email? We don’t have to the program to have our customers check “yes” or “no”, so by law is this still ok? Thanks!

    Reply
  6. If I reach out to someone on linkedin, and we chat for a bit and eventually exchange email addresses, would this fall under CASL? Even if I only email that person to follow up on things?

    Reply

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