CASL Will Take Effect July 2014

The Canadian Minister of Industry, the Honourable James Moore, announced today that the Canadian anti-spam law (CASL) will take effect July 1, 2014. This means that the Industry Canada regulations have now been finalized, and there is a six-month grace period for businesses to revisit their compliance programs in preparation of enforcement in July.

I spoke with Neil Schwartzman, one of the foremost CASL experts and Executive Director for the Coalition Against Unsolicited Commercial Email (CAUCE), about the news. He shared with me the highlights of the updated Industry Canada regulations:

  1. No Double-Jeopardy

If a Canadian sends an unsolicited commercial electronic message (spam) to another country, CASL does not apply. In this case, the anti-spam legislation in that country would apply. A table of specified countries will be provided. Conversely, individuals and companies sending electronic messaging of any sort must have implied or express opt-in consent to do so; CASL applies to them (see grandfathering, below)

  1. Software Updates

The regulations are better defined for updates of software previously installed. There will be no full-disclosure notification necessary.

  1. Carve-Out for Fundraising

The law will not apply to registered Canadian political parties and charities attempting to fundraise through email. However, they must comply with the guidelines applicable to unsubscribe requests. Note that for American political parties and charities, the law does apply.

Schwartzman cautioned that email senders using affiliate and third-party marketing, where consent is not clear, could run into problems. Relying on these providers to track proof of consent is risky. In addition, list rental will be problematic. If a business is sending their creative through a list broker, and that broker’s list is not CASL compliant, the liability will be linked to that business providing the creative, as there is a ‘follow the money’ régime in CASL, and so the advertiser can be held responsible. He believes the only safe and reasonable manner to manage this is through the placement of creatives in existing newsletters, provided that the list-owner is CASL compliant. An example would be a car rental company, partnered with a hotel chain, advertising that chain in their newsletter.

Another key point we addressed in our conversation was the implied consent grandfathering clause, which provides a reasonable timeframe to gain affirmative consent. A business has six months of implied consent for an inquiry, which is converted to a two-year period of implied consent if the sender closes business with that recipient. By maintaining the relationship with a recipient and tracking purchases and interactions, CASL compliance can be easily attained, and maintained. Return Path has lots of advice about how to handle inactive subscribers appropriately. The bottom line is that two years is plenty of time to establish consent in compliance with CASL. Mr. Schwartzman said it best: “CASL puts a legal framework around engagement, and defines what have been best practices for years.”

Mr. Schwartzman concluded that, “CASL will help attenuate the email fatigue that we have seen over the years, by putting bad players out of business and helping the good players to do the right thing.” This will also relieve some of the pressure from mailbox providers, whose systems will have to handle potentially less spam. He went on to say that “CASL is going to be a game changer to help those that have been championing good mailing practices.” He expects the email landscape to shift in the next 18 months for the betterment of all legitimate senders. By forcing the bad players to stop abusing recipients, legitimate email will be once again, welcomed in users inboxes.

More to come from Return Path on CASL compliance …


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