In my previous post, I talked a bit about the “Right to Be Forgotten” ruling that is currently rippling through Google and other search providers and the unintended consequences created by legislators and the bench when dealing with rapidly changing technology.
Well here’s another one. For those unfamiliar with the new Canadian Anti-Spam Legislation (or CASL), there are certain to be a lot of unintended consequences there, especially for e-marketers.
[I should note at this point that NOTHING I say in what follows should be construed as legal advice. I may pretend to be a lawyer, but that’s about it. Well actually I don’t pretend to be a lawyer, but I do make a lot of lawyer comments. Speaking of which, have you heard the one about lawyers and real estate agents … never mind*. What follows is what I’ve learned so far – with a healthy thank you to my colleague Peggy Winton. The point of this post is to share what we’ve learned, but urge you to speak with your own counsel. The advice people are getting is all over the lot; feel free to share what you’ve learned with the rest of the community in the comments, especially if it’s at variance with what is here. And keep in mind that my focus here is email, but the law also applies to texting and IMing.]
The basic gist of CASL is this -- all parties delivering commercial electronic messages to users in Canada must have secured opt-in consent (i.e., user-directed and not pre-checked) from those users prior to sending those messages.
The immediate basics are pretty clear. Our take is that while an argument can be made differentiating commercial messages from other messages, it’s best assume that ALL messages sent are commercial messages -- the Canadian definition is too broad to split hairs. Effective July 1, 2014, then, you can’t send out any emails to Canadians with whom you have no prior engagement. That means no use of 3rd party lists for promotional purposes. That means no more imports from other sources when you don’t have an express consent for your own use. There is a 3-year transition period within which you can still send outbound messages to those with whom you have a prior engagement during the past two years while you start the process of gathering their specific opt-in.
Beyond that, things get a little tricky. Between now and July 1, 2017, you will need to get opt-in consent from EVERY Canadian that you want to email. This means day-forward consent for all new contacts, and going back to all existing contacts to get their consent. If you are a 3rd party B2B organization or an association (like AIIM), beginning immediately you need to obtain opt-in consent to pass on Canadian email addresses to event or publication sponsors.
Our suggestions (again, there are a lot of interpretations of this law out there) for immediate actions to take (some are particular to B2B outfits like us):
- Change registration and download language to tie email consent to the specific programmatic action being taken.
- For 3rd party types like associations, create a new clause in every sponsored program contract that must be signed by the sponsor representative. This should outline what you are doing to comply with CASL, including the conditions under which you are sharing emails with them. It should also note their (sponsor) commitment to complying with CASL, and indemnify you from their activities from that point forward.
- Also for 3rd party types like associations, set up new records management processes and accountabilities to: 1) Document opt-ins (and opt-outs) with accurate views/reports capability; 2) Document lead sharing by vendor/program/date; 3) Document communication from and to vendors about opt-out requests received on their end (a whole set of rules apply then); 4) Enforce sponsor sales contracts
As I mentioned at the outset – there are a lot of varying interpretations out there, and this is just one (and again, this should not be construed as legal advice). Feel free to share your own interpretations for the benefit of everyone.
* Q: Why did God invent lawyers?
A: So that real estate agents would have someone to look down on.
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