Canada’s New Anti-Spam Legislation (CASL) will be effective July 1, 2014. Companies will not be able to use pre-checked boxes or other “opt-out” mechanisms as ways to collect express consent. The law places restrictions on the sending of commercial electronic communications and dictates what information must be included in any electronic message.
The law may apply to the following communication tools: emails, text messages, instant messages, Facebook messages directed to a particular user, and other social media tools whose purpose is to encourage customers to purchase your goods or services.
- Retailers must have consent from the consumer prior to sending certain electronic communications (referred to as “Commercial Electronic Messages” or “CEMS” in the legislation). The legislation sets out two forms of consent that are acceptable.
- One form of consent is implied consent, which means the customer has not specifically agreed to receive emails or other electronic messages from your business, but you have an existing relationship with the customer. Consent may be implied where the customer has purchased a product or service from your store in the preceding two years or made an inquiry within the preceding six months.
- Another form of consent is express consent, which means the customer has specifically agreed to receive electronic messages from your business.
- Companies must keep records of their customers who have agreed to receive electronic messages and be able to prove that consent (whether express or implied) was received.
- The law dictates what must be included in messages to customers. This includes clearly providing contact information for the entity sending the message and an easy to use no cost unsubscribe mechanism.
- The law also applies to electronic messages originating outside Canada.
- Businesses and individuals may be subject to significant fines of up to $1 million for individuals or $10 million for a corporation for non-compliance.
What should you do before July 1, 2014?
- The most important step is to consider asking all of the customers in your database to provide their express consent to continue to receive emails and other messages from your business.
- Ensure you have a system in place to record express consents received from your customers.
- If your business intends to rely on implied consent, ensure that you can track customer activity e.g. purchases or inquiries that will allow your business to demonstrate that you have implied consent.
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