What Canada’s Anti-Spam Law (CASL) Means for your Communication and Marketing Activities . . . .

Professional associations (not-for-profit organizations) have adopted email marketing, social media, blogging and text messages as efficient, inexpensive ways to reach members and constituents. But, as I indicated in my last blog posting, Canada’s new Anti-Spam Law (CASL), whose implementation is expected in late 2013 or early 2014, will affect how associations do that.

As lawyers Eva Chan and Victoria Prince (of Borden, Ladner, Gervais LLP) wrote last summer, in the Canadian Society of Association Executive’s (CSAE’s) “Trillium” Chapter E-Newsmagazine, planning for how an association develops its budget, does IT work, marketing, acts to recruit and retain membership, communicates, disseminates newsletters, directories, creates meeting attendee lists, website content and more  . . .  could all be affected. Prince and Chan write that “Once the law is in force you will not be able to solicit permission by email.”

What kind of communication is affected? Associations will have to secure explicit or implicit permission to contact their recipients electronically, and to record the date of that permission (since there are time limits). Commercial electronic messages (CEMs) are messages sent by any means of telecommunication (including text, sound or image messages), in which one of the purposes of those messages is to engage in a commercial activity. CEMs are the communications that are targeted by the CASL.

After further consultation, I learned that two-way “cold-call” telephone communications will not be affected, since those calls require participation from the recipient and so are not considered in this law to be “spam.” But the CRTC nonetheless has its own rules on telephone communication (more on that, in an upcoming blog).

What are the rules? CEMs will only be permitted if three conditions are met: (i) if the recipient has given consent to receive it; (ii) if the CEM technology sets out certain information, including how to unsubscribe; and (iii) the exception is if there is a personal or family relationship that the Federal Government says must include an in-person meeting between sender and recipient.

The CASL will also outlaw anyone altering transmission data, such as when an electronic message is delivered to a destination other than, or in addition to, the destination the sender originally addressed; or in addition to the destination the author originally specified, without the sender’s consent. (An example of this would be forwarding email messages.) Distributing electronic messages from another person’s computer system, without that owner’s consent, would also be prohibited.

Consent from your recipient, either implicitly or explicitly, is required—orally, or in writing. The recipient should already be part of an “existing business relationship” or an “existing non-business relationship” with the sender. For an example of the existing business relationship, the sender and recipient may have met through the purchase of a service, goods or products, within two years prior to the date when the message was sent. An existing non-business relationship includes a relationship in which a donation/gift, made by the recipient to the sender within two years of which the message was sent, where the sender is a registered charity (as defined by the Income Tax Act); or where volunteer work was performed by the recipient for the sender; or where the recipient attended a meeting organized by the sender, both within two years of when the message was sent, where the sender is again a registered charity.

Or the recipient may be a member of a club, association or voluntary organizations (as defined in the regulations), within two years of the sending of the message. Here too, Industry Canada has drafted a detailed definition of “membership” that Chan and Prince cite at length.  If it all feels like too much to deal with, when you have a small budget that uses many freelance service providers, you’re not alone. But implementation is coming soon.

What does this law mean, in practical terms? Once the CASL is in effect, organizations will have to write formal messages accompanied by the name of the person who sent the message (or of the person on whose behalf it is sent, if different), and contact information available that allows the recipient to contact the sender. That contact information must be valid for at least 60 days after the message is sent; it must contain links (if applicable) that are valid for 60 days after the message is sent; and it must allow the recipient to unsubscribe from receiving future CEMS from the sender. The “unsubscribe” function must function at no cost to the recipient. Additionally, the sender has a limit of 10 business days in which to reply to any request that the recipient sends, in reply.

What are the consequences for spamming? If you think it’d be easier to ignore the law and cope with the penalties, think again! Penalties for ignoring the new legislation could range from $1M (for the individual) up to $10 M (for groups or organizations). Officers and divisions of a corporation can be held personally liable for violations. An employer can be vicariously liable for a violation committed by an employee, acting within the scope of his/her employment. Chan and Prince report that there is a due diligence defence, to avoid liability, but the implications are serious. CASL also provides a potential private right of action, for those spammed after the law takes effect.

What about third party service providers? Freelance copywriters and editors like me will have to know about CASL and comply with it, when working to develop and implement marketing and communication programs, documents and services.

If your organization has not already begun to prepare itself for CASL, don’t delay any longer! Dealing with the internal processes for compliance requires time and attention. There is no “warm up” period.

To read the entire article Chan and Prince wrote for CSAE, visit http://bit.ly/13YepuH  (on the CSAE website).

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