Back in July of 2014, Canada’s Anti-Spam Legislation went into effect. Also known as CASL, it is one of the toughest laws in the world against unsolicited commercial electronic messages (CEMs) to the country’s citizens. Any messages sent to computers or phones in Canada, such as text messages and emails, fall under this law’s coverage. [1]

Canada created a three-year plan for organizations to make sure they were compliant with their law. On July 1, 2017, the transitional period ends. [2] Organizations that continue to send CEMs without consent to Canadians risk some serious penalties, which include up to $10 million per violation and potential civil charges. [3]

What does this mean for destination marketing organizations? Essentially, you need to review all of your communication channels by July 1, 2017. When doing so, you should ensure you are receiving express consent to send information to people, especially those in Canada. These channels include your email newsletters and website forms.

Before we proceed, let’s provide some disclaimers…

Please note the information in this article is not legal advice, as nobody at Simpleview who was involved with the writing or editing of this post is a lawyer. We recommend getting counsel if you need legal advice on how to interpret the legislation. This is information for awareness purposes and to inspire you to review your current practices.

Because legal information is not the same as legal advice – the application of law to one’s specific circumstances – this information cannot be relied upon as legal advice or as a recommendation of any particular legal understanding.

Additionally, the information shared is accurate as of the time this article was published and could be outdated if Canada’s law should ever change.

With that said, let’s dive deeper into the key points of CASL.

I’m not Canadian. Does CASL affect me?

CASL definitely affects a lot of businesses and organizations outside of Canada, as the legislation is tied to marketing to Canadians. If you have ever sent or plan to send communications to Canadian citizens, you will have to make sure those communications comply with Canada’s rules. [4] If you don’t, then you are subject to legal action from the country.

It is rare to find a tourism office that doesn’t actively reach out to Canadians. Therefore, it is fair to assume CASL impacts the majority of destination marketing organizations.

What is Express Consent?

Express consent is when somebody voluntarily and clearly agrees to a proposal from somebody else. [5] This type of consent can be given in writing or through speech, but it is up to the organization that is sending the communication to keep a record of how they got it. [6] A good record will include the source and time of the opt-in.

State Purpose for Communication

When asking for consent, you have to make sure to state a clear purpose for it. As an example, you may have a field on a form where people can opt-in for your email newsletters. The language on that form should be clear that they are agreeing to receive those newsletters and not some other form of communication, e.g., "Please send me e-newsletters." If you plan to also send the visitor special offers from your members and partners, the earlier example is not providing express consent.



Above: Example of a website form expressing a clear purpose for the communication, thanks to the Greater Madison Convention & Visitors Bureau

Get Consent for Communication

Even though the purpose may be correctly stated, the visitor must manually opt-in. Any checkboxes or fields that are pre-selected for them do not indicate express consent. [7] Additionally, lines found in your website’s Terms of Service or Privacy Policy about consenting to communications are not sufficient.


Above: Example of a website form collecting clear consent to their communication, thanks to the Outer Banks Visitors Bureau

Share Who is Asking for Consent

Express consent also means clearly communicating who is the person or organization behind the proposal. [8] Most tourism organizations list contact information throughout their sites, but it’s important that any CEMs include these details too. This includes an organization name, mailing address, phone number and email address. This is particularly true for email newsletters.



Above: Example of an email newsletter with clear information about the sender, including the organization’s name, 
thanks to the Hershey Harrisburg Regional Visitors Bureau


Give Opportunity for Communication to End at Any Time

Lastly, you need to provide a visitor the ability to forego their consent. If somebody doesn’t want to receive your communications any further, they have to be able to do so. [9] Furthermore, CASL requires that you honor any unsubscriptions within 10 days of the request.



Above: Example of a website form with clear language about being able to forego communication, 
thanks to the Pocono Mountains Visitors Bureau

What’s the Difference Between Express and Implied Consent?

Express consent is in contrast to implied consent, which is where the agreement is not clear.  [10] As an example, I could verbally ask you if you want to receive emails from me. If you are silent, I could perceive your silence as agreement. However, you never expressed that you did actually want to receive emails from me. If I sent you an email, you could argue that you never agreed to that proposal. Under CASL, you would be right and I could be subject to penalization.

Another example of implied consent is an existing business relationship, such as making a purchase or entering into a written contract. [11] In order for this type of implied consent to be CASL-compliant, the business action must take place at least once every two years. If an existing client, such as a member or partner, doesn’t buy something new or renew their account in that time period, the implied consent goes away. [12] Unlike implied consent’s time limitation, one of the major benefits of express consent is that it lasts until the person who gave the consent decides to forego it. [10]

There are other exceptions to the rule and can rely on implied consent. However, it’s always best to get express consent to be on the right side of the law.

How Can Simpleview Assist with My Anti-Spam Efforts?

Schedule a Meeting with your Account Team

It is an excellent idea to set up a meeting with your Simpleview account team, making sure to include the leads for your Simpleview CRM and email marketing efforts. With your Account Services representative, they can conduct an audit of your current communications. You can reach our offices at (520) 575-1151, email your Account Manager or send a ticket via the Simpleview Client Portal to move forward with this step.
 
Review Our Additional Resources
 
Throughout the company, we have developed plenty of other resources about this topic that you can use for legal information, but not legal advice (see disclaimer above). They include:

We also will be hosting a live webinar on the subject on Wednesday, Sept. 7, 2016 at Noon Eastern Time, which you can register for here: https://attendee.gotowebinar.com/register/7778682304656950018. Members of our team will be going through all the material and answering your questions. We encourage you to attend.

Final Word

Frankly, many of the requirements in CASL follow best practices for email marketing and form data collection. Taking these steps will likely improve your visitors’ engagement with your organization and the deliverability of communications.

Ultimately, we want you to be in Canada’s good graces. Reviewing the anti-spam legislation and working toward compliance by July 1, 2017 will help to ensure your communications are following the country’s law.

To review the law’s full text, you can visit http://laws-lois.justice.gc.ca/eng/annualstatutes/2010_23/FullText.html.

References

1. Fast Facts - Canada’s Anti-Spam Legislation: http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00039.html

2. Enforcement - Canada’s Anti-Spam Legislation: http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00026.html

3. What are the penalties for committing a violation under CASL?: http://www.crtc.gc.ca/eng/com500/faq500.htm

4. Does Canada’s New Anti-Spam Law Apply?: http://www.ic.gc.ca/eic/site/030.nsf/eng/00286.html

5. What is express consent?: http://www.fightspam.gc.ca/eic/site/030.nsf/eng/00304.html#q2

6. How am I expected to prove that I have implied or express consent?: http://www.fightspam.gc.ca/eic/site/030.nsf/eng/00304.html#q3

7. What is toggling?: http://www.crtc.gc.ca/eng/archive/2012/2012-549.htm

8. Information to be included in a commercial electronic message: http://www.crtc.gc.ca/pubs/CASL_Infograph5_Eng.pdf

9. Form of CEMs (unsubscribe mechanism) (section 3 of the Regulations): http://www.crtc.gc.ca/eng/archive/2012/2012-548.htm

10. Express consent versus implied consent: http://www.crtc.gc.ca/pubs/CASL_Infograph3_Eng.pdf

11. Electronic Commerce Protection Regulations: http://www.ic.gc.ca/eic/site/030.nsf/eng/00273.html

12. 3 Things to Think About When Sending Messages: http://consommateur.ic.gc.ca/eic/site/030.nsf/eng/00288.html

This post was originally published on the Simpleview CMS Knowledgebase. You can read the original at http://cmskb.simpleviewinc.com/article.php?id=179.