On Monday we talked about the heart of CASL: Express and Implied Consent. In today's post, we're going to talk about the other requirements you must meet to remain compliant.

As the CASL is currently written, there are three requirements you must meet to send a commercial electronic message (CEM). The main requirement, consent, was discussed in the previous post, but a CEM must also contain clear identification information and an unsubscribe mechanism.

What is clear identification?

The CASL defines identification as a business name and full postal address along with an email address or phone number you can be contacted at. In addition, if you are sending the CEM on behalf of someone or multiple people, they must all be identified as well.

Important Note: If you run a home business, you are not exempt from this requirement. However, you are allowed to get a post office box and list that as your address; the only requirement is that the mail sent there actually reaches you. 

You must make it easy to withdraw consent.

You must allow your current subscribers to unsubscribe and withdraw consent. The process needs to be easy (no hiding it behind a user login buried under many pages) and must not cost the subscriber anything.

To remain compliant with this aspect of the CASL, you should have an unsubscribe link at the bottom of every CEM sent that is clearly labelled. 

Tip: Email marketing platforms such as Aweber have unsubscribe and consent tracking built in. It will be very difficult to manage even a mailing list after CASL comes into effect, and we'd highly suggest you start using one if you aren't already.

If you've been using an email marketing platform already which has double-opt in—and if you’ve been clearly outlining what you will be sending to the subscribers—you may already have express consent!

You must not send misleading CEMs.

CASL doesn't just police consent, it also covers the content of your messages and requires that they be truthful and not misleading. That includes everything from the subject line to your identification information and even any links you include in the message.

For example, if you run a retail store and you send out an email message with the subject "50% OFF EVERYTHING," but some of your inventory is only 25% off, that would be considered a violation of the CASL.

Exemptions:

While CASL is far reaching in scope, there are a few exemptions:

Messages sent to consumers in response to a request for information. As originally worded, the CASL did not account for messages sent in response to requests, inquiries, or complaints; this has been fixed and they are now exempt.

Business-to-Business communications: Communications sent between businesses that have an ongoing business relationship are exempt, provided the messages are sent by an employee, representative, contractor, or franchisee. The messages must be relevant to the business, role, or duties of the recipients.

Messages sent to third-party business partners, such as marketing agencies, recruiting firms, and insurance carriers are also exempt.

Enforcing a legal right: Any messages sent to enforce a legal right such as debt collection, enforcing constructional obligations, or licensing.

Telecommunications service providers:  Are exempt when sending messages for the purpose of preventing illegal activities or for network update / upgrading purposes.

Personal Relationships: Are defined as one where individuals had voluntary, two-way communication at any point in the past that is based on factors such as the sharing of interests and experiences. This relationship is considered personal unless the recipient has clearly asked not to receive any CEMs from the sender.

Fundraising:  Messages sent by a registered charity whose primary purpose is raising funds for that charity.

Messages exempt from the consent requirement.

There are a number of messages that a business will send on a regular basis that are exempt from the consent requirement only, they include:

Providing a quote or estimate if the quote or estimate was requested.

Providing warranty information, product recall information, safety information, or security information about a product or service that the recipient uses, has used, or has purchased.

Completing or confirming a commercial transaction that the recipient has previously agreed to enter into.

Providing fact-based information about the use of a product by the recipient of products, or services that are provided under a subscription / membership or similar relationship with the sender.

Providing information about the recipient's employment relationship or a related benefit plan.

Providing information about a product or service the recipient is entitled to based on a previous transaction.

What about Social Media?

If the CASL covers any commercial message sent electronically, does that also include Social Media?

Well, yes and no. If the message has a direct recipient or recipients, then it is governed by the CASL.

For example:

Posting a message to your business' Facebook page wall: Not governed by the CASL.

Sending a commercial message to someone via the Facebook messaging system: Governed by the CASL.

Posting a tweet to your Twitter account: Not governed by the CASL.

Sending a direct message to another Twitter user: Governed by the CASL.

So, what now?

I know that this is a lot to take in, but we're nearly there. On Friday, I'll be talking about all the potential issues this law is going to face in enforcement, and why it's generally going to make the lives of businesses much more difficult without providing any measurable relief for consumers.

I'm predicting (or maybe just hoping) that the legislation isn't going to stand up over the long term in its current format... but only time will tell.

This is the third email in a three part series: Part 1, Part 3 

OBLIGATORY NOTICE: I am not a lawyer; the following article discusses an upcoming Canadian law and contains only my opinion. It should not be considered legal advice. I do not guarantee this information, and all readers should consult their own legal counsel in regard to this legislation.