Getting on The Right Side of Canada’s Anti-Spam Legislation.

The Canadian government are rolling out a strict policy on commercial email marketing. This is what you need to know.

This article was originally published on the Engine Digital blog.

The rules around email marketing in Canada are about to change. For digital marketers and product managers leading customer engagement, this means a change to the way their organizations have historically connected with customers and increased their reach through email.

Canada’s Anti-Spam Legislation (CASL) is being dubbed one of the strictest anti-spam policies in the world. There is certainly a lot of mixed information out there. And these new laws definitely leave some room for interpretation. That said, it’s not necessarily cause for wide spread panic.

For brands using email as a key part of their digital engagement strategy — and most definitely should be at this point — it’s important to understand these new rules and to have a plan in place that ensures your organization is making the right changes to avoid being on the wrong side of CASL regulation. Here’s why…

What Canada’s Anti-Spam Legislation really means.

Canada’s Anti-Spam Legislation has been in the works for some time. But with a July 1st start date looming, there’s a shrinking window of time to make sure your organization is compliant, and to be sure your subscribers are aware of their acceptance of being communicated to. And this is important because starting July 1st, 2017, recipients of spam will have the ability to take legal action through lawsuits against both individuals and corporations that are in breach of these new regulations.

While CASL seems at first to be centered around email marketing, it actually goes beyond that, including single emails (not just mass mailings), apps, software, or any other digital platform that sends email. These new regulations also loosely include text messages and other forms of communication through social networks that are intended to encourage any kind of commercial activity. And contrary to its name, CASL also includes regulation around website cookies (though these regulations don’t take effect until January, 15th, 2015). It’s an extensive regulation that requires a fairly clear view on how your organization stays connected with its customers and prospects.

Canada’s Anti-Spam Legislation also goes beyond Canadian-based organizations, requiring anyone sending email into or through Canadian networks to follow the new regulations or face tough penalties. Anyone breaking the rules faces fines of up to $1 Million for individuals and $10 Million for companies, with corporate Officers and Directors potentially liable. While the regulatory process is somewhat vague, CASL will be managed by three separate government agencies — the CRTC, the Competition Bureau, and the Office of the Privacy Commissioner of Canada.

Take proactive steps to get prepared.

Getting onto the right side of this new legislation takes a bit of planning and a bit of work. Proactive organizations are already reaching out to their Canadian subscribers to request the express consent to continue their correspondence. To do this efficiently, you’ll need to be managing your subscriber lists on a platform, like Campaign Monitor, MailChimp, ExactTarget that lets you create segments by region. You definitely don’t want to be purging your entire global list of subscribers if you don’t have to.

While the Canadian regulation requires express, or implied consent, US regulations are far more flexible, where providing access to an opt-out mechanism is sufficient coverage. To comply with CASL, there needs to be some form of direct action (an opt-in) taken by the recipient. Inaction, like not opening an email or not clicking to opt-in/opt-out simply does not constitute express consent, nor will a pre-checked opt-in box — these are now illegal in Canada.

For subscribers that have already provided express consent before July 1st, 2014 through a method that is compliant with applicable laws at that time, these subscribers are considered valid under CASL.

Express consent is permanent; it doesn’t expire, and is quite literally a direct opt-in either verbally or digitally.

So what is implied consent?

Your existing business contacts may still fit into the ‘implied consent’ category, provided you are able to prove either contracted or transactional business no more than two years prior to any email outreach you plan to send.

Want to reach out to someone that sent you an inquiry about a product or service you offer? Under CASL you have a six-month window of time to keep in touch from the date of inquiry.

Want to send an email to someone you met and exchanged business cards with at a networking event? You’re still CASL compliant if your email subject refers to the event. However, send an unrelated message offering up your services and you could be breaking the law.

Unfortunately, implied consent also means you must re-confirm opt-ins every 24 months, and this can be a challenge to manage. Re-confirmation fortunately includes customers that make another purchase. However, for offline business relationships, you’ll need to ask each subscriber to explicitly opt-in to future email communications on a fairly regular basis. And asking via email may be against these new regulations.

Your best option is to try to gain express consent before July 1st, 2014, after which time, any form of email outreach will be considered marketing, and your future requests will be legally limited to in-person, telephone, fax (yep,… fax), and postal mail (yep,… postal mail). Any future uncertainty as to your organization’s compliance will be up to you to prove otherwise, so be sure to keep clean records of any express consent that you obtain. And that can be tough if consent is verbal or paper-based. Consider modifications to how you manage user data through your email marketing and CRM platforms to ease this process.

A little confusing? Maybe. But thankfully, still somewhat flexible for marketers.

What you need to do.

As a short-term next step, you should start to focus on cleaning up your lists by having your subscribers confirm their subscription. You’ll want to do this now, before the July 1st start date, however, some sources are reporting that for subscribers in your database before July 1st, 2014, these users will be grandfathered until July 1st, 2017, so you may not have to re-confirm their subscription before then.

In short, this is your best course of action for long-term compliance…

1. Segment Your Lists — Build list segmentation by region, isolating your Canadian subscribers from your general database. This is a Canadian regulation, so you really only need to confirm subscribers that are in Canada. This is not just a short-term requirement. You’ll likely need to consider overall workflow and the technology you use to manage subscribers and send out your email campaigns, ensuring you are using a solution that can handle segmentation.
2. Send a Single Message Email — Let your Canadian subscribers know about the new regulation by sending a single message email campaign. Give them an overview of the new regulation and why you are reaching out, and make it clear that you need them to take action by re-confirming their subscription. Let them know why they are on your list in the first place, remind them of the value you provide your subscribers (latest product information, early access to promotions and events, etc.), and let them know they can unsubscribe at any time in the future.
   This email needs to provide a clear call to action for your subscribers to ‘opt-in’ or ‘opt-out’ of future communications. You may want to include only an ‘opt-in’ option to keep things simple, however, users that do nothing will not qualify as consenting subscribers and should be removed from your list. What you can’t do under CASL is include only an ‘opt-out’ option in the hopes that your subscribers will just ignore the message and not click anything. As noted above, you also can’t use a pre-checked ‘opt-in’ checkbox as these will be illegal in Canada following July 1st.
3. Purge Your Lists — By default, those that do not ‘opt-in’ and those that do nothing at all will need to be removed from your lists. You should give this a window of time, as subscribers can often take days or weeks to open an email and take action.
   Purging your subscriber lists is actually a task to consider ongoing, as it ensures your lists contain only real people and active email addresses. Taking the above steps will likely mean smaller and more targeted subscriber lists, which in email marketing terms is both a good and bad thing. While a larger list is usually better, a more accurately targeted list will improve overall metrics and lead to higher click-through-rates and conversions. Inactive subscribers provide little to no value to you, so cut your ties and say farewell.
4. Be Sure Your Emails Comply with CASL Requirements — Beyond providing useful content, there are three key requirements for any communication you send a subscriber. Each email must clearly include an unsubscribe link, the sender’s name, and the sender’s contact information including mailing address, telephone number, email address, or web address, and this information must remain valid and accurate for 60 days following the distribution of your email. It’s important that your email campaigns take these basic requirements into account.
5. Improve Your Opt-In Forms — As per the new CASL regulations, your opt-in forms need to clearly state why email addresses are being collected and who exactly is collecting them. Consider including copy like this anywhere you’ll be collecting email subscriptions… “Sign up for the Whole Foods weekly e-newsletter. We’ll send you information about new products, recipes, deals, and tips for a healthy lifestyle on a weekly basis. We won’t share your email with anyone and you can unsubscribe at any time.”
6. Make Sure Your Opt-Out Process is Valid — CASL requires that all marketing emails contain a clear opt-out link, and that your opt-out mechanism remain valid for 60 days after an email is sent. The best case is always a self-serve opt-out form, but opting-out by email response is valid too. In either case, if you provide a single opt-out link rather than a set of list preferences, you must assume a subscriber that clicks that link is opting-out of all of your communications. You must also honor opt-out requests within 10 days.

What if you’re not on an email platform?

First, if you aren’t yet managing and building your subscriber lists on a platform that allows you to define segments, you should talk to us about defining your email marketing strategy.

Second, unless you can manually segment your list, you may need to email all of your subscribers to request confirmation of their subscription. The downside; you’ll likely lose a large share of your subscribers. For those that click through, be sure you’re pushing them towards the right information to keep them engaged. Consider a landing page that gives users a clear sense of what it is they’ll have access to by staying on your list. Here’s where you’ll need to ask them to opt-in in order to stay connected.

Building a strong subscriber list takes time and coordination across an organization. Separate lists for each department can help to spread the responsibility to each area of your business, with each group focused on increasing their reach to specifically targeted subscribers. Remember, marketing is no longer only the responsibility of the marketing department.

Make sure you’re providing value.

Finally, focus on delivering valuable content. If you’re able to prove value in the information you send your subscribers — less promotional and more informational — you’re likely to retain a greater number of subscribers when you ask them to re-confirm their subscription to your list. This takes time and effort, and may require a broader content marketing strategy combined with your social marketing approach.

Similarly to how building your lists is a company-wide responsibility, so to should be your approach to creating the right mix of content that will be compelling to your audience. Sure, your marketing team should own the calendar, the platform, the schedule, distribution, and measurement, but content is the story behind your business, and great stories live in all places. Consider what content can be found across the organization, packaged up, and presented to your customers and prospects to create a greater interest in what you do and how you do it.

That said, when a subscriber does opt-out, according to CASL, they will now be opting-out of receiving email communication from the entire organization, not just the marketing department.

So, is email marketing even worth the trouble?

Well,… yes. These new regulations are intended to cut down on spam by requiring organizations to keep better records of who’s on their list and why. No one likes spam. And very few consumers will buy products over time from a brand that doesn’t respect the basic fundamentals of a good brand-consumer relationship. The new Canada’s Anti-Spam Legislation goes beyond government regulation and sets the bar for how organizations should treat consumers by limiting their ability to market without consent. While this is good news to consumers, for marketers, these are simply new rules to play by.

For more information on Canada’s Anti-Spam Legislation, direct from the source, visit fightspam.gc.ca.

Disclaimer: this blog post is not intended to provide legal advice. If you are in the process of defining your approach to getting your subscriber list up to speed, we suggest you speak with your legal counsel to ensure full compliance to Canada’s Anti-Spam Legislature.

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Written by Stephen Beck, Founder & CEO of Engine Digital.

Engine Digital is a Vancouver and NYC digital agency focused on helping organizations like the NBA, Lululemon, Western Union, Adidas, and Pirelli Tires, improve the overall customer experience through foundational web, mobile, and social platforms, products, and services.

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