Storming the CASL: Last-minute questions from concerned marketers

Storming the CASLAs many marketers already know, the Canadian Anti-Spam Law (CASL) is set to take effect on July 1. For anyone who’s counting, that’s just one week away!

If you’re like most senders we know, your CASL preparations are already well underway and you’ve taken full advantage of our CASL resources. Even so, you may need some last-minute advice before the law goes into full force – and you’re not alone. We’ve gotten lots of questions from senders who want to make sure they’re compliant, and this post will address some of the more common threads.

As always, nothing in this post should be construed as legal advice. We know deliverability, but we’re no lawyers!

If we don’t receive confirmation of opt-in by July 1, can we continue sending our emails?

In a word? No. CASL requires an opt-in to send a user any sort of commercial electronic email (CEM). If you do not have consent (either express or implied) from a user by July 1, sending them any CEM would be a violation of CASL and subject you to some pretty harsh penalties.

What if someone has published their contact info on a website? Can I email them?

Yes and no. CASL does technically allow you to email someone whose email address is made publicly available (such as on a website) and does not include wording that they do not want email, as long as the email relates directly to their role or business. However, WhatCounts (and most Email Service Providers) will not allow this as the mail is not permission-based.

We have been emailing these contacts for (weeks/months/years), do we have implied consent to continue mailing them?

Not necessarily. Under CASL, implied consent means the user has an “existing business relationship” with your organization. This typically means they made a purchase or some other financial transaction. Implied consent is not affected by whether the recipient has received previous emails.

The CASL requirements dictate implied consent expires after two years in most cases (three years during the initial transition period). However, the best practice would be to request express consent at the point of purchase (or prior to July 1) to minimize the risk of legal challenges.

We often get consent via phone. If we don’t record phone calls, can this be considered valid express consent?

It can be, but it will be difficult to prove. The opt-in would have to be CASL compliant, which means the phone representative who gets the email address would have to state clearly to the customer he or she is requesting commercial emails and he or she can unsubscribe at any time. Without a recording of the call, there’s no way to prove these statements were made, or to prove the customer gave the email address exactly as it is logged in your system.

What information is needed to prove consent?

Unfortunately, we can’t answer this question. This would be subject to legal interpretation by Canadian authorities in the event of a complaint. However, we strongly recommend you log the following information:

  • Date and time of opt-in (all)
  • URL of the page where the opt-in occurred (web)
  • IP address used by the person submitting the request (web)
  • Recording of the phone conversation, including all CASL-required elements (phone)
  • Hard copy of the sign-up sheet or form used to opt-in (paper)

As the first major anti-spam law that actually requires consent, CASL is designed to change the way marketers send electronic messaging. The primary purpose of the law is to encourage marketers to get express consent to send commercial mailings. While CASL does allow some provisions of implied consent for parties with existing business relationships, that implied consent is only temporary and could always be subject to legal challenges. The safest way to avoid running into CASL issues is to get clear, CASL-compliant, express consent before you begin to send promotional mail.

Download The Email Marketer’s Ultimate Checklist for Canada’s Anti-Spam Law to help you get ready for the coming updates.

If you have any additional questions or need more information, please don’t hesitate to contact the WhatCounts Support team for assistance.

Brad Gurley
Director of Deliverability, WhatCounts

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