Are Small Businesses Ready for CASL?

It has been a few years in the making but CASL (Canadian Anti-Spam Legislation) will begin first phase of implementation on July 1st and small business are scrambling to understand the impact this will have on their business.

Canada’s Anti-Spam Legislation, also known as Bill C-28, is a new law with serious fines meant to crack down on unwanted e-mails and other electronic messages and it will apply to companies and organizations worldwide. Though the law also has provisions for malware, at the core of it, businesses selling or promoting products or services will require consent from existing and new clients.

Like many marketing and social media companies, Constant Contact has been holding webinars and free educational events about CASL and its ramifications for at least a year leading up to the July 1st implementation date, but there there  may still be businesses who have not taken the time to get up to speed on the new legislation and may be get caught off guard.

A Globe and Mail article nailed it with this quote:

“It is a big deal,” says Kathryn Frelick, a lawyer at Miller Thomson LLP inToronto, who has been busy working with her colleague Jennifer Babe on advising businesses about the impacts of CASL. “A lot of small businesses don’t have the technology or the budget, or they can’t amend their technology in time to be able to have this ready for July 1.”

CASL, which received royal assent in 2010, was in limbo for a few years amid intense lobbying from a number of businesses and groups, particularly those worried about negative impacts. In late 2013 the government said it would take effect on July 1, 2014, giving businesses six months to prepare.

The penalties for each violation can be up to $1 million for an individual and up to $10 million for companies. The law will be enforced by three government agencies: the Canadian Radio-Television and Telecommunications Commission (CRTC), the Office of the Privacy Commissioner, and the Competition Bureau.

The biggest issue is consent.  And how can a business get consent? It can be implied through an existing business relationship, but that implied consent ends two years after the business deal ended. The business also has to be able to prove the deal and track the timing.

Getting consent can be written or oral. If companies want to do it electronically, through e-mail for example, they need to reach out to clients and customers by July 1 and have them opt-in. That may include having the customer check a box that says they’re willing to receive electronic communications.

In recent blog post, Michael Geist shared some great insights on the ramifications of CASL:

Personal and Family relationships. Far from being limited to best friends, the personal relationship exception is extremely broad, covering a wide range of relationships. For businesses starting out, those personal relationships will often be important and the law allows for commercial emails in many of these circumstances.

Openly available email addresses. Almost anyone that publishes their email address without a clear statement that they do not wish to receive commercial messages is fair game. The law allows for implied consent (implied in this case because they have published their email address without the notice) where:

the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;

In other words, claims that new businesses will not be able to identify potential business contacts and contact them via email are false. The law allows businesses to develop a list of contacts and to send them relevant email messages provided the email is published without the do-not-contact statement.

His blog post also includes sections and explanations for:

  • Third party referrals
  • All emails sent in response to a request, inquiry or complaint
  • Existing business relationships
  • Non-business relationships
  • Purchase of existing business

He continues with is reassurance:

This is a very long list of exceptions for businesses of all sizes and hardly the catastrophe that some suggest. While it will require some businesses to obtain express consent or to modify marketing practices that were based on sending large scale unsolicited commercial email, the result should be better, more effective online marketing for businesses and greater control over their in-boxes for Canadians.

 At the end of the day you should be sure to seek out information to educate and understand this new legislation. This also shows respect to your current and potential clients’ inbox.

Constant Contact provides a handy checklist of 3 Steps to CASL Compliance (pdf). You can find more information in these links and videos:

 

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This is a guest blog post by Jim Pagiamtzis, Founder of 21 Connections and Accredited Solution Provider with Constant Contact.