What Canada’s New Anti-Spam Law Really Means for You

Roy McClean
Jul 09, 2014
What Canada’s New Anti-Spam Law Really Means for You

CASL, Canada's anti-spam legislation, aims to "protect Canadians while ensuring that businesses can continue to compete in the global marketplace." They have been big in the news lately due to their implementation of the "world's toughest anti-spam law," effective July 1,  and it seems to be causing quite a bit of confusion for many.

Earlier this week I had the opportunity to sit down on Google Hangouts with Frithjof Petscheleit of BlueBird Business Consulting and talk specifically about what the CASL laws really mean. Frithjof is a friend and web marketing consultant based out of Kelowna, BC. He has a tremendous grasp and understanding of CASL, so I was delighted to learn more about what he had to say. The following is taken from of our conversation.

Frithjof PetscheleitBut before we get started... a bit of legal housekeeping: It should be noted that neither Frithjof nor I are lawyers: anything we recommend here should be taken as it is - opinions from two seasoned online professionals but our advice should not be taken as legal counsel. Always consult with a certified legal professional when in doubt! With that said, let's dive in.

ROY: There's a lot of confusion and apprehension regarding CASL. Please give us an overview of your experience dealing with CASL for the first time.

FRITHJOF: I think the reason there is confusion is because there are people trying to make it more confusing than it actually is. It is really a very straightforward law, but at first glance looks like a lot of unnecessary regulations. Right now it takes us further than any known international anti-spam law. Really, though, it leads towards just not spamming people. You can see through the law that the protection against spam is in the forefront. These regulations may be perceived as being a little over the top by some. And I wonder how the CRTC is going to enforce them. But it is a great set of guidelines, where my summary is and always will be... just don't trick people into getting something they don't want. That's really pretty easy, isn't it?

ROY:  Many of our clients are very concerned about this, despite hearing similar things as to what you have just said. But are there not some legal things CASL is now looking for? For example, updating your privacy policy? Or using specific disclaimers on opt-in messages?

FRITHJOF: First of all, we have to think about what is a "commercial message." That is often where it starts. We're not talking strictly about email marketing, but we're also talking about social media messages, text messages, business emails and such. We need permission for all these. The most common manner of getting permission is with expressed permission, meaning somebody has said, "YES! I want to receive this!" It is the marketer's responsibility to ensure people clearly understand what it is they will be receiving and what list they are subscribing to. This must also include the physical address of the subscriber, an unsubscribe-at-any-time link, and at least one way to contact the business electronically. Expressed consent does not expire, making it the best way for marketers to get permission. Getting subscribers online (using a double opt-in process) is by far the easiest way of documenting, as well.

ROY: We're seeing all over the place -- I am sure you have too -- those confirm to consent emails. I've gotten at least a couple dozen emails recently from companies all across Canada --


ROY:  -- and the United States of America too, yes. So, my question is: is that necessary?

FRITHJOF: No. In most cases that is not necessary. The only case where it would be is if you have added people to your mailing list that you did not receive permission from. Meaning you have not done business with them in the past two years, you do not have a business relationship with them, or you have bought a mailing list. Even if you did do something like that -- depending on which lawyer you talk to -- you can have up to three years to move those people from an implied-consent list to an expressed-consent list.

ROY: So businesses are needlessly cutting down their email marketing lists, then?

FRITHJOF: Exactly. A lot of companies -- including major brands! -- are reducing the reach of their email marketing audience by 50 to 80 per cent because they are asking their existing customers and audience, "Do you reeeeeaaaallllyyy want to keep receiving these emails?" Many people receiving these emails are thinking that is great because they don't even need to unsubscribe anymore, all I need to do is do nothing. It is absolutely unnecessary.

ROY:  So why the sudden flurry of emails? Obviously many organizations were feeling that if they didn't do this -- send out confirm-to-consent emails -- before July 1st, they would be in breach of the anti-spam legislation. Why did they think that?

FRITHJOF:  Misunderstanding. Even lawyers can interpret the law differently, occasionally. Many people have copy-pasted (incorrect) answers and responses to the legislation and spread it online and through the media. The businesses who should be taking action are the ones who have come across lists in non-permissory ways. Which leads me to something that I am really not understanding… why are some people so surprised about the new legislation? People like you and me, Roy, have advised and told others forever that you just do not trick people into a list.

ROY:  Exactly. It's unethical. And... dumb marketing!

FRITHJOF: You must have their consent. It's simple. Also, if you have their consent, your messages are going to be much more effective. Remember, a clean email list is better than a big email list because your message is getting to people who presumably want to receive it.

ROY: Are there any smaller, or less known, items in the legislation that people might not know about?

FRITHJOF: One that comes to mind is sign-up forms. Often you will find sign-up forms that offer pre-checked boxes. Y'know the boxes that allow you to check to also receive newsletters? They might sometimes be different newsletters, such as Daily Specials, Weekly Newsletter, and Monthly News or whatnot, and are already checked. You can't do that anymore. You must allow people to opt-in to your newsletter list, as opposed to being subscribed by default with a way to opt-out.  

ROY  That is very interesting, in fact, the contact form on our own Contact Page is currently set to just that: default opt-in. We will to change that right away, giving them the option to actively opt-in. (NOTE: our Contact Page has been updated)

FRITHJOF: Absolutely!

ROY  Well that's great, thank you very much Frithjof, I've learned a ton in today's discussion! 

FRITHJOF: Thank you, Roy! Talk to you soon.

Frithjof and I talked for 30 minutes about CASL and covered some more specifics about CASL and how it applies to you. He even has some slides prepared about CASL on Slideshare that you can view below. Follow Frithjof on Twitter and Google+.

A Slide Share Presentation about casl

A Video About CASL from the Government of Canada

You can also learn more about CASL by watching this short but informative video from the Government of Canada.

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