Here’s What Canada’s Anti-spam Legislation Means for Small Businesses

Are you compliant with the new Canadian anti-spam law?

The new ‘Anti-Spam’ law will have a significant impact on how mainstream Canadian businesses communicate with their existing customers and others, and how small businesses communicate with new customers. With the new law likely coming into effect early 2012, companies should start complying well ahead of this legislation coming into force.

If you’re already adhering to email marketing best practices concerning permission-based email marketing then your email marketing best practices are likely CAN-SPAM compliant. This means you’re compliant with U.S. laws. But what about the new laws for Canadian email marketers?

This new law has a lot to do with permissions. It is within the new consent requirements that the new rules will have the greatest impact on businesses in Canada.

The general rule is that express “opt-in” consent must be obtained. In certain defined circumstances implied consent may be used, such as if a person has a contractual relationship with the intended recipient. Under the new legislation however, this implied consent will not be enough. Businesses will have to invest significant time and resources into re-qualifying those recipients with implied consent by means of fresh express opt-in consent. A three year transitional period is provided to re-qualify.

What does that mean for your business? A brief summary on CASL is provided below to help understand what to do next

What is CASL?

CASL, The Canadian Anti-Spam Legislation (Bill C-28) will establish new requirements for anyone using electronic messaging for marketing in Canada. It applies to any form of electronic message including: email, social media/networking, instant messaging and SMS.

What you need to do to comply

CASL requires consent before any Commercial Electronic Message (CEM) can be sent. In cases where implied consent has been obtained such as i) where the sender has an existing business or non-business relationship with the recipient, ii) where the recipient has published their electronic address in a prominent manner, iii) or where a recipient has provided their email address directly to the sender. In these cases, a marketer has 2 years to convert those with implied consent to express consent.

We recommend companies start now gathering explicit consent from their new and existing contacts now so they are ahead of the game

Other requirements

• Senders must identify themselves
• Senders must indicate on whose behalf the message is sent
• Senders must provide up-to-date contact information
• Senders must include a functional unsubscribe mechanism

Are there any penalties for not complying?

Yes. The maximum penalty for a violation of the legislation is $1,000,000 for an individual and $10,000,000 for a corporation or other business entity. These fines are imposed per violation, and a violation is defined as being separate for each day that it continues. Violations create both direct and vicarious liability, and directors or officers of corporations may be personally liable for the corporation’s violations. Employers are also liable for violations committed by their employees acting within the scope of their employment.

Agencies responsible for enforcing the law are the CRTC, the Competition Bureau and the Office of the Privacy Commissioner of Canada.

In Summary

While the new law aims to increase consumer confidence in electronic commerce by protecting Canadian consumers and businesses from unwanted spam and related threats, small businesses who are simply connecting with their customers must also comply.

Are you prepared for Canada’s Anti-Spam Law?