Storming the CASL

Oct 30, 2017


We’ve already taken an in-depth look at Canada’s anti-spam legislation (CASL for short). If you need a little brush up, check it out here. As promised, this week we’re going to tackle CASL best practices. Thus the headline: Storming the CASL (aren’t we clever).

But before we do, hold up a second. There’s been a big change to CASL over the past couple months or so. And it’s muddled things up a bit. So let’s un-muddle them for you.

What’s up with the Private Right of Action?

To answer this question concisely, nothing.

July 1st of this year, the Private Right of Action (PRA) provision of CASL was supposed to come into effect, but it’s been stalled. Indefinitely.

The PRA was extremely controversial. It allowed the recipient of an unconsented-for commercial electronic message (CEM) to seek “compensation in an amount equal to the actual loss or damage suffered or expenses incurred;” and “up to $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred.”

In other words, someone could privately sue you for a non-compliant CEM. But not anymore. That said, CASL’s still enforced by the CRTC, so it’s important that you are compliant, regardless of the PRA provision.

The CRTC still means business. In fact, this March they made a pretty definitive statement: not even small businesses are being spared. William Rapanos was hit with a $15,000 fine for sending out a pretty innocuous marketing email.

Unfortunately for him, it didn’t include an unsubscribe feature. All it took was fifty complaints. This was the first incident in which the CRTC pursued action against an individual. And it certainly won’t be the last.

Big companies like Rogers Media, PlentyofFish Media, Porter Airlines, and Kelloggs have also taken hits. This is all to say: be careful and make CASL compliance a top priority!

Best Practices

Phew! Now that that’s out of the way, let’s take a look at some tricks of the trade. Remember, if you’re iffy about any of your communications, consult a lawyer. CASL should not, under any circumstances, be an afterthought. It should play a central role in how you strategize all outgoing CEMs.

From Implied to Express—Strengthen Your Consents!

Don’t be content with implied consent. Seriously. Implied consents, generally speaking, are good for two years. Six months in cases where an individual has reached out to you to inquire about your offerings. Express consents, however, never expire. Unless a recipient has unsubscribed to your CEMs, of course. This is why it’s important to ALWAYS turn your implieds into expresses. So, how do you do it?

Simple. Initiate an opt-in campaign to people who’ve given implied consent to receive your CEMs. This is, bar none, the easiest way to ensure that your email lists are all CASL-compliant in the long term. And it’s pretty easy.

  1. Be clear and concise about the ask. Put your call to action in the email subject line. Whether you ask someone to straight up verify subscribing to your emails or something subtler. Be clear and concise. A sense of urgency might even improve your email’s open rate. In your body, make it clear to your recipient why they’re receiving an opt-in email. Most people are familiar with CASL at this point, so there’s no need to overdo it.
  2. Offer value. Incentivize the opt-in process. Maybe you send them a whitepaper in exchange for their email or you host a contest which they’re automatically submitted into.
  3. Give them the option to approve or decline. This is important. For one, studies have shown that providing choice encourages a higher positive response rate. Also, and this is true for all CEMs, even those to recipients with implied consent, be sure to have an unsubscribe button.
  4. Finally, don’t stop. Keep sending opt-in emails to recipients who haven’t opened or responded to you. But don’t be annoying!

Remember to always keep records of your consents, too. The onus is on you to prove that an individual has consented to received CEMs from you. Which leads us to…

Consent Tracking

Record keeping is a drag, but it’s absolutely necessary. Tracking express consents is straightforward because, well, they never expire. Implied consents, not so much.

At Arke, we’ve developed a built-in tracking mechanism that integrates with NationBuilder’s people database. It lets you know when your implied consents expire and prompts you to send out an opt-in campaign to ensure your lists continue to be CASL-compliant. The feature is a huge time saver and it offers peace of mind. If you’d like to learn more about it, get in touch with us.

Other Blog Posts