CASL: Tough New Email Marketing Rules in Canada Presents Challenges for Marketers

Marketers look for clarification about what is and what is not allowed in Canada

In their recent compliance agreement (see Appendix D in the attached communications from OPC) with Compu-Finder, the Office of the Privacy Commissioner of Canada explained in detail what we can and cannot do when building email lists under CASL. Whether you are B2C or B2B, you need to understand what each of the 3 bodies enforcing CASL are looking for. So far we have heard a lot from CRTC — the main enforcement body. More recently we heard from OPC:

“Any company doing e-mail marketing should keep records indicating when and how consent from individuals was obtained to collect and use their e-mail address. They should also provide some indication as to the individual’s employment, business or profession and the e-mails sent to them to prove relevance where required.

Such records and their sources should also be revisited at intervals if your organization is relying on implied consent to check that such consent remains valid. For example, has a non-solicitation statement been added to a website?”

The burden of proof is 100% yours. So data must be kept in a dynamic way so as an indivdual’s status changes, so do their records with you. Sounds easy, but most databases were not set up to comply with these high standards. Data tracking is the #1 challenge in becoming CASL compliant. In a rapid;y changing market, you must know and prove opt-in, express or implied.

Many B2B marketers thought they could use the ‘conspicuously published” clause to build robust lists within their industry sector. Simply unleash the bots with specific instructions and find websites with certain titles, within certain industries. If they are published in plain site and we have a good reason to believe they are interested in what we are emailing them about, we’re good to go, right? To quote the OPC:

“the publicly available exception cannot be claimed if an address was collected by the use of address-harvesting software.”

So email lists must be built one single name at a time, when someone interacts with your Company (expression of interest — online or off) or you take the time to seek them out, ensuring there is no statement of non-solicitation along with their publicly displayed email address. Again to quote OPC:

“Any company doing e-mail marketing should keep records indicating when and how consent from individuals was obtained to collect and use their e-mail address. They should also provide some indication as to the individual’s employment, business or profession and the e-mails sent to them to prove relevance where required.”

So building email lists and tracking accurate, changing data: just 2 of the challenges for marketers who wish to email Canadians.

Derek A. Lackey is the Publisher of Blazon.Online, a community portal for Canadian marketers — www.blazon.online and the Author of CASL Compliance: A Marketers Guide to Email Marketing To Canadians