Your Questions Answered: Canada’s Anti-Spam Law Q & A

What does Canada's Anti Spam Law mean for you? Find out in this Q & A!Canada’s Anti-Spam Law (CASL) is getting a refresher on July 1, 2014. If your business sends emails, these updates most likely apply to you. Don’t wait until the last minute to make sure your email marketing complies with the law. Learn to whom the law applies, how to apply the changes to your email marketing, exceptions and exemptions and more by listening to the recording of our most recent webinar.

You submitted questions to our Director of Deliverability Brad Gurley about CASL. It’s our hope the answers below will help you prepare for the coming changes.

Please be advised these answers are our informed interpretation of the Canadian Anti-Spam Law and its applications. This content is for informational purposes only and is designed to help you, as marketers, better understand the law and how it might affect you. We are not lawyers, and nothing presented here is, or should be construed as, legal advice. It may be necessary to consult your legal or compliance department for specific guidance in regards to adherence with the law.

Q: Can I send out an unsolicited email survey for market info, product usage, etc?
A: Whether this is legal under CASL would depend on whether the message can be deemed as “commercial.” Unsolicited commercial email is prohibited by CASL. However, most ESPs and bulk mail providers won’t allow you to send unsolicited mail, regardless of its commercial designation.

Q: Can we send an email to everyone in our Canadian database now requesting they subscribe to continue receiving future correspondence, and will that be considered valid?
Q: If you received express consent prior to July 1, 2014, but do not have proof, do you need to obtain consent again to comply with CASL?
A: As long as express consent is received prior to July 1, 2014 and the method of consent gathering is compliant with applicable laws at that time (PIPEDA in Canada, specifically), those opt-ins would be considered valid under CASL.

Q: Is there an exception for higher educational institutions?
A: There is no exception specifically relating to educational institutions. There are some “non-business relationship” clauses that may apply in some cases, but nothing specific to education.

Q: If signing up for email on paper (such as at trade shows) do you still need to have a ‘checkbox’ to request email? Our current document only asks for name, email, phone and city.
A: Anytime you use a paper signup, you want to make it’s as clear as possible the recipient is signing up for promotional emails. Including a check box to receive promotional emails would be a good option. You could also include a prominent note they are signing up for promotional emails. The most important thing to remember is if there are any complaints, you as the sender will be required to provide proof of a valid, CASL-compliant opt-in. So you’re only helping yourself by making the opt-in process as clear as possible.

Q: Does express consent have to be in writing or can it be verbal (e.g.over the phone) or in person?
A: Express consent can be obtained verbally. However, it will be harder to prove verbal consent if there are any challenges.

Q: Can we leave our opt-in forms uncompliant if we just omit all known Canadian addresses from our sends?
A: You can, but you may be opening yourself up to CASL violations. If you collect any data that might indicate a user is in Canada (physical or billing address, email domain name, credit card issuer, etc.), that might constitute a “reasonable expectation” that the user would be accessing the message in Canada. I’d strongly advise consulting legal counsel as to the proper course of action.

Q: How can we prove consent if the signup form they used is now gone from the web?
A: Thorough record-keeping. Log the IP address, date, and time the opt-in was captured, as well as the specific URL of the page. If you have all that information, and the opt-in was obtained before CASL came into effect, you are likely to be in a good position in the event of a complaint. If a sign-up form goes offline after CASL’s effective date, you should still keep the same information. In addition, though, it might be a good idea to keep a cached copy or screenshot of the form on file if that’s feasible.

Q: How do you recommend dealing with customers who reside in the United States, but work for Canadian-headquartered companies?
A: If a subscriber’s employer is based in Canada, and the employer is providing the email address used to access the message, any mail sent to that address would likely be subject to CASL.

Q: We have approximately 20,000 email customers, but no ability to track the data history of their opt-ins. Would we need to obtain express consent for all?
A: If you don’t know the opt-in status or history of your subscribers, then you should send a new opt-in request prior to July 1, 2014 to ensure compliance with CASL.

Q: For an agency that uses an ESP, does our agency name need to appear on the email as well as the ESP and the company we are sending on behalf of?
A: If your agency determines either who to send the mail to, or the content of the message, then your agency should be identified in the message. Most ESPs do not perform either of these functions, so it is unlikely the ESP would need to be identified there.

Q: If you include an unsubscribe link in a transactional email (such as an order confirmation), is that unsubscribe effective for any future transactional emails, or only from commercial emails?
A: That depends on the options you provide. If there’s only one unsubscribe option, then that user should be unsubscribed from all mailings from your organization, commercial or transactional. It’s probably a better idea to include options allowing them to unsubscribe from either transactional or commercial mail, or both. That way, you can honor the specific wishes of the subscriber as to what emails he or she wants to receive.

Q: According to CASL, confirmation emails should include the ID of the sender and an unsubscribe method. Does this include follow-up emails regarding a purchase?
A: We would recommend including the ID of the sender and an unsubscribe method in every email if possible. The law certainly leaves room for interpretation, so it’s better to be safe than sorry.A couple of examples were provided in our webinar (hotel confirmation and refund/cancellation emails), so we’ll give some thoughts on those. A hotel stay confirmation is part of a commercial transaction, so we believe it could be considered a CEM. In that case, it should include the ID of the sender and an unsubscribe method. The same would be true for the refund/cancellation email. However, there could be an exception if notice of the refund or cancellation is fulfilling a legal obligation or is informing the recipient of their legal rights.

Q: If an ESP or organization is based in the United States, but has a satellite office in Canada, are they subject to CANSPAM, CASL, or both?
A: All mail sent from, or accessed by, a mail server housed in Canada is subject to CASL. Does the organization have mail servers in Canada? Do any of the recipients access mail through a server located in Canada? If the answer to either of those questions is yes, then the mail is subject to CASL. As for CAN-SPAM, the requirements of that law are actually less stringent than CASL. So if you are CASL compliant, you are likely CAN-SPAM compliant, as well.

Q: Does the three-year transition period apply to contacts who have given express consent?
A: No. Express consent is permanent and doesn’t expire. It can only be revoked by the address owner requesting to be unsubscribed.

Q: What do we have to do with existing lists?
A: That will depend on the status of your lists. If you have received express consent from all your existing contacts and you have at least basic records of when and how that was acquired, you likely won’t need to take any action with those contacts. However, if you are unsure of the opt-in status of your users, or have no records of them opting in, it may be necessary to run an opt-in campaign prior to the July 1 effective date.

Q: What is a recommended method for obtaining express content after implied consent has been obtained?
When a guest stays at our hotel, we note in their confirmation letter that we will include them in future promotional emails and give them a link with an option to unsubscribe, but I don’t think that qualifies as getting express consent.
A: You’re correct about your current model: It doesn’t constitute express consent. Express consent requires the subscriber take action to subscribe. The current method only requires the user not take the action of opting out. The best method of obtaining express consent will vary depending on your situation, but in most cases a website opt-in form is recommended. The form should be compliant with the CASL requirements, and you’ll want to keep records of the source IP address as well as the date and time of the opt-in.

Q: What would be an example of proof of consent?
A: That will depend on the CRTC’s judgment. However, in the case of a web opt-in, having the source IP address used along with date and time of the sign-up and the URL of the page would likely be a good starting point. Any sign-ups not received via the web may be more difficult to contest. For verbal opt-ins, a recording of the exchange would probably be ideal. For paper sign-ups, keeping the paper form on file is likely the best method of record-keeping.

Q: For loyalty clubs, would monthly statements be included in the exemptions?
A: Most likely, if the statement doesn’t include advertisements. If it does include any solicitations or links to purchase, we strongly recommend it follows CASL’s provisions.

Q: For transactional emails, can replying to the email count as an unsubscribe method? Or could people send an email to unsubscribe@companynewsletter.com to unsubscribe (as an example)?
A: CASL mandates the unsubscribe link be valid and working, and be specifically called out within the email. Either an email address or a link to an unsubscribe form should be included, with wording instructing the user how to unsubscribe (i.e. “email unsub@example.com to unsubscribe from all mailings,” etc.)

One thing to note here is  if you only provide one unsubscribe method, you must assume that user wants to unsubscribe from all mailings. So the best practice would be to use a link or links that provide options on what messages to stop receiving.

Q: Would filling out a “Request for Information” form that includes entering an email address count as an opt-in, or would a check box also have to exist?
A: No check box is required, but the form has to be CASL-compliant. It must inform the user he or she is requesting promotional emails and he or she can unsubscribe at any time. If the form is simply a request for information or a quote for a particular product or service, it isn’t considered express consent. The sender would only be allowed to send messages in response to the particular request, and only for a period of six months.

We hope these questions and answers have helped clarify Canada’s Anti-Spam Law update coming in July. Have another specific question related to the law and email marketing? Email Brad at bgurley@whatcounts.com.

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