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After nearly five months since the Canadian Anti-Spam Law (CASL) rules came into effect, the majority of businesses are still perplexed with the extent of their obligations under the legislation

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After nearly five months since the Canadian Anti-Spam Law (CASL) rules came into effect, the majority of businesses are still perplexed with the extent of their obligations under the legislation.

Some of the most common questions include:

  • What do I do if I receive a business card at an event?
  • How does social media apply to CASL?
  • Can someone send a commercial electronic message (CEM) on my behalf?
  • If someone unsubscribes from a colleague’s CEM, are they also unsubscribed to mine?

Here's a real scenario that I'll share that I think will uncover in a helpful way, some of the key facets required for you to operate better within CASL.

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A public relations manager and friend at a Canadian subsidiary of a multinational U.S. brand contacted me this month and said: "We've been sending out e-newsletters to a contact list inviting recipients to an event we're hosting. We don't have consent from the majority of people on this list. What are the rules as they pertain to CASL?"

If you ever find yourself in a similar situation, here is what you need to know. First, you'll want to ask yourself, "Is the message I'm about to send over e-mail commercial in nature?" If it is, it's what's called a CEM. If your electronic message isn't commercial in nature, then CASL doesn't apply and you may freely send your message (assuming it's a Canadian recipient).If it is, you need to have either consent (express or implied), or meet an exception under CASL or one of its regulations. Express consent means the recipient has previously affirmatively provided you permission to send them CEMs.

The two common ways you can acquire implied consent is if the recipient purchased a product from you within the last two years or became a lead within the last six months.

Under section 66 of the Act (transitional provisions), you're further given a grace period allowing you to continue to send CEMs to someone who was a customer or lead before July 1, 2014, for up to three years from that date (unless they unsubscribe, provide express consent, etc.), if you had sent that recipient a CEM before such date.

In terms of exceptions, they are valuable when they apply because you can freely send a CEM to a recipient in those special cases, without formalized consent. Some of the most popular exceptions include recipients that:

  • You have a personal or family relationship with;
  • Are within your compan and the CEM relates to your company;
  • Your corporation has a relationship with the corporation who’s receiving the CEM and the CEM pertains to that corporation’s activities;
  • You’re sending out invoices to or performing collection practices with.

Once you've determined if you either have consent or meet an exception, then what?

You may legally send this person a CEM, however (with only a small handful of exceptions), you must ensure your CEM contains the following appropriate sender details including company name, mailing address, telephone, URL or e-mail address and an unsubscribe mechanism.

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What's your biggest challenge or question concerning the implementation of the CASL into your business?

Note: The above is provided as educational material and not to be interpreted as legal advice.

Andrew Schiestel is the president at tbk Creative, a web design and digital marketing company; Host of the podcast programs, The CASL Series™ and Digital Marketing Canada™; And Co-Founder of AODA Online. He may be followed on Twitter at @AndrewSchiestel.

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