Businesses operating in Canada are set to come under one of the toughest anti-spam laws the world has ever seen. While Canada was dragging the chain when it came to introducing anti-spam legislation, it is now making up for lost time. Ottawa's new law — expected to be operational early this year — has severe fines for violations and is viewed by some as too tough.
Known as CASL, the new law aims to crack down on spammers and mailing list companies but in doing so, tightly regulates the way businesses can market to prospective customers via email and online.
In a nutshell, CASL requires a business to obtain consent from the recipient before it sends out commercial electronic messages (CEMs). It isn't limited to email; consent must be given for any electronic message, which could also include messages sent via social media, text messaging, instant messaging, sound or video. If your business operates outside of Canada, you shouldn't assume the Anti-Spam Act doesn't apply to you. If a computer system within Canada is used to send, receive or even route the message, then the law could also apply to you.
It is in obtaining consent before sending an electronic message where the Canadian Anti-Spam Act differs from its American equivalent. The United States' CAN-SPAM Act requires that recipients are given an opt-out option from commercial messages but under CASL, recipients must opt-in to receive electronic messages.
The fines for violating the Anti-Spam Act are hefty. The maximum penalty per violation for an individual is CAD $1,000,000 and $10,000,000 for corporations. With potentially crippling fines waiting in the wings for violators, how can you ensure your company is compliant?
The first thing is to be aware of which messages require consent before they are sent. There are a few exceptions, which include personal relationships or when the company is providing requested information. Consent can usually be implied if there is an existing business arrangement of two years or more, or if an email address has been disclosed in the course of business. You can read more about exceptions to CASL here.
If your electronic message doesn't fall under an exception category, then you will need to obtain consent before sending it. The message should also include an unsubscribe mechanism. To ensure compliance, your company should establish procedures to obtain consent for electronic messages and educate staff on the Anti-Spam Act. The most important thing to remember before you press 'send' is the onus is on your company to prove you received consent.
Do you operate a business in Canada? How do you think the Anti-Spam Act will affect the way you market electronically? Please contribute to the conversation below.
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