The Marketer's Guide to Applying CASL
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The document provides a comprehensive guide for marketers on the Canadian Anti-Spam Legislation (CASL), outlining the necessary compliance requirements for electronic marketing communications. It details the importance of obtaining consent, the potential penalties for non-compliance, and offers actionable guidelines through the CASL action chart. Additionally, the guide compares CASL to the CAN-SPAM Act, ensuring marketers can effectively navigate both regulations to optimize their campaigns.
The Marketer's Guide to Applying CASL
- 1. THE MARKETER’S GUIDE TO APPLYING CASL HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW
- 2. THE MARKETER’S GUIDE TO APPLYING CASL 2 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW AS A MARKETER YOU NEED TO BE WELL INFORMED ABOUT ANYTHING THAT CAN HAVE AN IMPACT ON THE SUCCESS OF YOUR CAMPAIGNS. That is the reason the authors of this Guide – TC Media, Return Path, nNovation and the Coalition Against Unsolicited Commercial Email (CAUCE) – have come together to develop a powerful tool that will help marketers develop more effective campaigns and therefore improve the experience of consumers of electronic messages. This Guide concisely summarizes the details relevant for marketers about CASL – The Canadian Anti- Spam Legislation. But, this document takes one more critical step in helping marketers succeed: It provides actionable guidelines so that you can comply with the new law and use it to optimize your marketing campaign results. In this Guide, you will find answers to the following questions: »» What is CASL? »» Do I need to comply? »» What do I need to do to comply with CASL? »» What are the penalties of not complying with CASL? »» What should I do now? Finally, this Guide includes The CASL Action Chart which outlines the steps you can take to ensure that your marketing campaigns comply and optimize the new law. And, to provide you with a relevant basis of comparison, The CASL Action Chart also compares the new obligations to those under the CAN-SPAM Act of 2003 – which marketers worldwide have been applying to their campaigns. THE MARKETER’S GUIDE TO APPLYING CASL
- 3. THE MARKETER’S GUIDE TO APPLYING CASL 3 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW WHAT IS CASL (BILL C-28)? CASL, The Canadian Anti-Spam Legislation (Bill C-28) will establish important new requirements for anyone using electronic messaging for marketing in Canada. CASL will apply to any form of electronic message sent for marketing purposes (referred to as a “Commercial Electronic Message”, or “CEM”), including: email, SMS, instant messaging and social media/networking. CASL also addresses Internet marketing challenges such as malware, phishing, pharming and other Internet threats2. DO I NEED TO COMPLY? Anyone sending a CEM (Commercial Electronic Message) from Canada or to someone in Canada is subject to CASL. Canadian and international organizations sending to Canadians are required to comply with the bill. WHAT DO I NEED TO DO TO COMPLY WITH CASL? CASL requires consent before marketers can send a CEM. This is consistent with the long-established requirement for consent under the Personal Information Protection and Electronic Documents Act (PIPEDA) (http://www.priv.gc.ca/information/guide_e.asp). This means that consent must be obtained before a CEM can be sent. There are also a number of circumstances under which consent may also be implied. These include: (i) where the sender has an existing business or non business relationship with the recipient; (ii) where the recipient has published their electronic address in a prominent manner; (iii) or where the recipient has provided their email address directly to the sender3. CASL also requires senders to identify themselves, to indicate on whose behalf the message is sent, to provide up-to-date contact information and to include a functional unsubscribe mechanism. These rules apply regardless of how many messages are sent (i.e. where a single message is sent). THE MARKETER’S GUIDE TO APPLYING CASL
- 4. THE MARKETER’S GUIDE TO APPLYING CASL 4 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW WHAT ARE THE PENALTIES FOR NOT COMPLYING WITH CASL? CASL establishes a civil regime with significant enforcement powers and penalties4. Administrative monetary penalties can be as high as $1 million per violation for individuals, and $10 million per violation for organizations. CASL also includes provisions for a private right of action that allows any person to seek damages in court resulting from a violation of the law. CASL enables the agencies responsible for enforcing the law – the Canadian Radio-television and Telecommunications Commission, the Competition Bureau and the Office of the Privacy Commissioner of Canada – to work with foreign counterparts in the enforcement of CASL and similar foreign legislation. The good news for marketers is that these penalties and powers are specifically aimed at the most egregious offenders (i.e., spammers). Organizations that commit an honest mistake while otherwise making reasonable efforts to comply with the legislation have protections under the legislation. Most importantly, the ‘due diligence’ defence provides that a person should not be held liable for a violation where they can demonstrate that they have exercised due diligence to prevent the commission of the violation. This is further incentive to ensure that your organization understands and complies with the requirements of CASL. CASL ACTION CHART Follow the guidelines described in the following CASL Action Chart to ensure that your marketing campaigns comply with and optimize the new law. MARKETERS’ CORE ISSUE: WHAT MESSAGES ARE COVERED CAN-SPAM CASL COVERS HOW TO OPTIMIZE YOUR Only addresses email. »» Unsolicited Email, SMS, » CAMPAIGNS WHILE Instant Messaging (IM) LEVERAGING CASL Establish a baseline policy »» Spyware, Malware, for interacting with your Phishing, and Pharming subscribers across all »» Social Networks technologies, something that will meet and/or exceed the requirements regardless of the medium. THE MARKETER’S GUIDE TO APPLYING CASL
- 5. THE MARKETER’S GUIDE TO APPLYING CASL 5 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW MARKETERS’ CORE ISSUE: WHO A MARKETER CAN SEND EMAIL TO TO ENSURE YOUR CAMPAIGNS TO ENSURE YOUR CAMPAIGNS HOW TO OPTIMIZE YOUR ARE COMPLIANT WITH CAN-SPAM ARE COMPLIANT WITH CASL CAMPAIGNS WHILE Marketers can send commercial Marketers can send email LEVERAGING CASL email to anyone. However, to anyone who has given Segment your subscribers marketers cannot send consent. Consent may also be (and targets) based on commercial email to anyone who implied in one of the following expressed preferences, has “unsubscribed” or “opted- circumstances: observed behaviors, out” from commercial email. demographics and customer 1) There is an existing business lifetime value. or non-business relationship between the sender and the Use opt-in consent methods recipient of the message*; for capturing contact information. 2) The recipient has published their address in a conspicuous manner, and the message is related to the recipient’s professional capacity; 3) The recipient has provided their electronic address directly to the sender, and the message is related to the recipient’s professional capacity. Explicit consent exists when the recipient provides the sender permission to send messages. *Definitions of business relationships and non-business relationships can be found at the end of this document. THE MARKETER’S GUIDE TO APPLYING CASL
- 6. THE MARKETER’S GUIDE TO APPLYING CASL 6 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW MARKETERS’ CORE ISSUE: WHEN A MARKETER CAN SEND EMAIL TO ENSURE YOUR CAMPAIGNS TO ENSURE YOUR CAMPAIGNS HOW TO OPTIMIZE YOUR CAMPAIGNS ARE COMPLIANT WITH CAN-SPAM ARE COMPLIANT WITH CASL WHILE LEVERAGING CASL Marketers can send commercial Marketers can send email only Avoid seeking an “ideal” time email at anytime. But, if an email after consent is provided, or can & day to send email. Only send recipient has unsubscribed, be implied. emails when you have relevant marketers must cease any and timely content. commercial email within 10 In most circumstances implied days, and thereafter must consent lasts for two years. Use preference centers so that receive an explicit request subscribers can choose the from an email recipient to re- timing and frequency with which subscribe before sending any they receive emails. more commercial emails to that If you are relying on implied recipient. consent, use this two-year window to gather explicit consent. MARKETERS’ CORE ISSUE: WHAT NEEDS TO BE IN ALL EMAIL MESSAGES TO ENSURE YOUR CAMPAIGNS ARE CASL COVERS HOW TO OPTIMIZE YOUR CAMPAIGNS COMPLIANT WITH CAN-SPAM WHILE LEVERAGING CASL Marketers need to include: Marketers need to include: To increase the likelihood of »» Valid information in the » »» The identity of the person email being delivered by the Email header who is sending the email Internet Service Providers (ISP), message. ensure the Domain Naming »» Company postal address System (DNS) and the Internet »» If the email is being sent on Protocols match the corporate »» Subject lines that accurately someone’s behalf other than reflect the purpose of the brand sending the email. Also, the sender, the name of that review the guidelines set out in email person needs to be included. TC Media’s The Marketer’s Guide »» A functional unsubscribe »» Company name to Successful Email Delivery. mechanism Run tests (e.g. html coding, spam »» Company contact information words, subject lines, spelling »» Unsubscribe mechanism mistakes, text on graphics, etc.) on your content prior to deploying. Include your postal address as one of the forms of contact information. THE MARKETER’S GUIDE TO APPLYING CASL
- 7. THE MARKETER’S GUIDE TO APPLYING CASL 7 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW MARKETERS’ CORE ISSUE: WHAT A MARKETER NEEDS TO DO TO ACQUIRE NEW EMAIL SUBSCRIBERS TO ENSURE YOUR CAMPAIGNS TO ENSURE YOUR CAMPAIGNS HOW TO OPTIMIZE YOUR CAMPAIGNS ARE COMPLIANT WITH CAN-SPAM ARE COMPLIANT WITH CASL WHILE LEVERAGING CASL If consent has not been While CASL does not outline Follow the guidelines set out in the gathered, marketers need to any specific actions, it demands Personal Information Protection include a notice stating that the that marketers have consent and Electronics Documents Act email is an advertisement or (either express or implied) prior (PIPEDA) and work with your email commercial message. Marketers to sending an email. Marketers service provider to take advantage cannot use address harvesting cannot use address harvesting of online contests and offline or dictionary attacks to generate or dictionary attacks to generate marketing campaigns. lists. lists. http://www.priv.gc.ca/information/ guide_e.cfm. MARKETERS’ CORE ISSUE: WHAT A MARKETER NEEDS TO DO TO ACCOMMODATE RECIPIENTS WHO DON’T WANT TO RECEIVE THEIR EMAILS TO ENSURE YOUR CAMPAIGNS ARE CASL COVERS HOW TO OPTIMIZE YOUR CAMPAIGNS COMPLIANT WITH CAN-SPAM Marketers must maintain clear WHILE LEVERAGING CASL Marketers must maintain clear and conspicuous unsubscribe Include an email address and conspicuous unsubscribe procedures within the email and unsubscribe and a web page procedures within the email and honor requests for unsubscribing for unsubscribing. honor requests for unsubscribing without delay. within 10 business days of Use a preference centre to ensure the request. Marketers must also provide a that subscribers can opt-out, method for email recipients to or opt-down, from individual Unsubscribe mechanisms must easily contact the person(s) publications rather than all of your remain active for 30 days from responsible for sending the publications. Include ‘unsubscribe the day the email was sent. message. This method must be from all’ as an option. active for 60 days from the day Unsubscribe mechanism must the email was sent. Ask unsubscribers an optional be simple and not require any question, “Why are you additional information other unsubscribing?” so you can learn than an email address and a how to modify your campaigns preference to opt-out. based on this feedback. Route unsubscribe reports to a customer service representative so they can be reviewed, rather than to an unattended mailbox. THE MARKETER’S GUIDE TO APPLYING CASL
- 8. THE MARKETER’S GUIDE TO APPLYING CASL 8 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW AUTHORS As one of Canada’s leading providers of media and marketing solutions, TC Media offers a comprehensive line of products and services and an integrated approach to activate customers’ marketing. TC Media is one of Canada’s largest media groups, reaching 18 million consumers through its multiplatform offering. The group, which has nearly 4,500 employees, owns several well-known consumer and business media brands that are leveraged across multiple platforms. TC Media is also the leading provider of local and regional information in Quebec and the Atlantic provinces through its extensive network of community papers and online portals. TC Media is the co-owner of the Metro weekday daily in Montreal and Halifax. It is also the leading door-to-door distributor of advertising material in Canada, with Publisac in Quebec and Targeo in the rest of Canada. TC Media is a leader in Canada’s digital industry in terms of both media properties and online advertising representation. With its extensive network of more than 1,000 websites, TC Media reaches more than 13 million unique visitors per month in Canada. The group also offers interactive marketing solutions that harmonize strategy, content and multichannel distribution systems to build lasting relationships between brands and consumers. TC Media leverages its insights, marketing expertise and proprietary technology to anticipate and meet consumer needs using new interactive communication platforms: mobile, data analytics, email marketing, e-flyers and custom content and communications. TC Media is also active in book publishing and distribution and is the largest publisher of French-language educational resources in Canada. For more information on CASL and Email Marketing, contact [email protected] RETURN PATH (www.returnpath.net) works to make email work better by scoring and certifying email senders from around the world. We help marketers, publishers and other large-volume email senders increase their response rates by providing the world’s leading inbox deliverability solution. We help mailbox providers and email administrators at ISPs and enterprises block unwelcome and malicious email by providing near real-time IP reputation scores and other datadriven tools. Taken as a whole, these tools and services improve the consumer experience of email by protecting them from spam, phishing and other abuse. Return Path offers free access to Sender Score, the email reputation measure compiled through our cooperative data network of ISPs and other email receivers, at our reputation portal: www.senderscore.org. For email deliverability tools and consulting services, contact Return Path: [email protected] THE MARKETER’S GUIDE TO APPLYING CASL
- 9. THE MARKETER’S GUIDE TO APPLYING CASL 9 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW nNovation LLP is a preeminent Canadian law firm specializing in federally regulated matters, including privacy, advertising, electronic commerce, and competition law. nNovation LLP lawyers have extensive experience in online marketing, and have been involved in the development and implementation of CASL. Look for a compliance guide coauthored by Shaun Brown and Kris Klein to be published by Carswell in the of spring 2011. For more information, please contact Shaun Brown at (613) 656.1297, or sbrown@nnovation. com CAUCE NORTH AMERICA INC (www.CAUCE.org) was formed in March 2007 in a merger between CAUCE U.S. and CAUCE Canada. CAUCE has moved beyond its original mission of encouraging the creation and adoption of anti-spam laws to a broader stance of defending the interests of the average Internet user against Spam 2.0: Spam, phishing malware & spyware. CAUCE North America is led by a combined board with a cumulative century of experience in the field of Internet advocacy, and is funded by its individual and corporate members. THE MARKETER’S GUIDE TO APPLYING CASL
- 10. THE MARKETER’S GUIDE TO APPLYING CASL 10 HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAW END NOTES This Guide is provided for information purposes only, and is not intended as a substitute for qualified legal advice. The authors make no claims as to the absolute reliability and accuracy of any information presented herein, and accept no liability or responsibility for any errors or omissions. 1. Bill C-28 (www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/h_ gv00567.html) was formerly Bill C-27, the Electronic Commerce Protection Act (ECPA ). 2. Please review “The Digital Economy in Canada” glossary for more details (www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00333.html) or consult the authors of this Guide. 3. Both business and non-business relationship are defined at the end of this document. A message can only be sent under the latter two scenarios where the recipient has not expressly stated that they do not wish to receive unsolicited messages and where the message is related to the recipient’s professional capacity. 4. Violations of CASL are not criminal offences. Note: The Competition Act includes the ability to prosecute certain violations involving misleading and deceptive practices as either civil violations or criminal offences. KEY DEFINITIONS »» You are considered to have had a business relationship when a customer has purchased/leased a product, good or service, bartered or entered a contract with you.» »» You are considered to have had a non-business relationship when a person donates to, volunteers for, or becomes an official member of, your organization. Copyright 2012 This work is licensed under the Creative Commons Attribution- NoDerivs 2.5 Canada License. As a result you are free to copy, distribute and transmit this document under the following conditions: 1) You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work); and 2) You may not alter, transform, or build upon this work. For more details see creativecommons.org/licenses/by-nd/2.5/ca/. THE MARKETER’S GUIDE TO APPLYING CASL
- 11. CONTACT DETAILS TC Media 90 Eglinton Avenue East, 3rd Floor Toronto, Ontario, M4P 2Y3 Canada P: 416-361-3522 | F: 416-361-1265 [email protected] www.tc.tc