CASL: One year later
Canada's Anti-Spam Law (CASL) is a year old this month and the good news is that not much has changed for legitimate email marketers. Email – the old, reliable “digital workhorse” – is alive and well. Clickstream metrics have been relatively unaffected and legitimate marketers are still seeing great results. Meanwhile, the Canadian email landscape has been trimmed and the new regulations are generally keeping companies in line. In fact, according to a report from Cloudmark, the amount of spam is down by a third!
The Past
A year ago there was a lot of confusion and anxiety surrounding CASL. But the basic principles of CASL were (and are) straightforward. Email marketing is a permission medium. Marketers need to track their permission level to send email to recipients. And these recipients must be able to easily and quickly unsubscribe.
Most of the initial confusion with CASL was around permission levels. Businesses understood that once CASL came into effect, marketers sending email to Canadians needed to collect “consent” from new opt-ins and opt-in pages needed to be more explicit and couldn’t include pre-checked boxes. Perhaps the biggest area of confusion was “implied consent”. Basically, marketers sending email to a person prior to July 1, 2014 had “implied consent” and could continue to send them email. However, they needed to have proof that they had previously mailed this person.
The Present
Since July 1, 2014, it has been business as usual for most marketers. There’s a bit more vigilance surrounding list hygiene (which is a good thing). According to Matt Vernhout, Chief Privacy Officer at Inbox Marketer, “The enforcement team from the CRTC has been busy and have received over 310,000 complaints”. However, the government has been true to their word that they are not aggressively looking to penalize legitimate marketers but rather dealing with more significant violators.
While marketers were afraid of CASL’s fines, the CRTC has only issued a little over $1.3 million in fines for violations like: sending unsolicited communications and complicated unsubscribes. The most recent of these fines was issued on June 29, 2015 to Porter Airlines who, has agreed to pay $150,000 as a result of alleged violations against Canada’s anti-spam legislation (CASL). The company allegedly sent commercial emails that did not contain an unsubscribe mechanism. In other instances, it is alleged this mechanism was not clearly or prominently set out. Certain emails also allegedly did not provide the complete contact information as required by the law. Porter Airlines also allegedly failed to honour, within 10 business days, requests from some recipients to unsubscribe from receiving future commercial emails.
Fines like these highlight the fact that even the most legitimate marketers need to take care to ensure their processes are updated and compliant with these news laws. Conduct annual CASL audits of your marketing programs to ensure compliance.
The Future
If you deploy to some implied consent recipients, you need to start preparing for July 1, 2016. This is the first hurdle – when the first of the post-CASL implieds two-year consent begin to expire. The final hurdle, July 1, 2017, marks the end of the transition period where two things will happen:
- Three-year implied consents for records that qualified to remain active under Section 66 will expire.
- The private right of action will become available. Individual citizens and corporations will have the right to sue companies for CASL violations.
Will there be a tsunami of lawsuits? Probably not, but there will be lots of fanfare (and your legal team will want lots of preparation time).
In conclusion, email marketers still need to be vigilant. Check your list hygiene and permission tracking to ensure you are compliant. Conduct an annual CASL audit. If you do your homework, keep proper records and have processes in place to prove due diligence, you should not have much to worry about.
