Going from opt-out to opt-in: CASL part 1

May 8, 2014

Anti-Spam

Did you know Canada is one of the worst countries in terms of spam? Thanks to Jonathan MacKenzie, lawyer at Aluvion Law, I feel prepared to tackle this issue! He was the excellent presenter on the topic “Understanding CASL: the new anti-spam law” for Strategic Focus for StartUps two days ago.

This blog post is based on my experience as a Business Mentor and the new information obtained during the seminar on CASL. Today, I introduce you to the topic and next week I will publish part two that shares more in-depth information about what you must do, practical questions asked by the public and tips Jonathan shared.

The new Canada Anti-Spam Law (popularly named CASL) is going into effect per July 1st, 2014. That doesn’t mean all electronic communication is immediately regarded as spam. What Bill C-28 does tell us is big and small businesses need to get their act together.

The government of Canada feels the best way to tackle (email) spam is to convert our opt-out system covered in PIPEDA (Personal Information Protection and Electronic Documents Act), to a new opt-in system (covered in CASL).

Opt-out, opt-in; say what?

Simply said, under PIPEDA businesses are able to send individuals and businesses commercial content via email, newsletter, and social media channels. All that was needed was the sentence (or something similar to): “If you would like to unsubscribe, please click here” and provide the actual unsubscribe mechanism.

Under CASL, businesses must receive “express” or “implied” consent before contacting the individual or business. Express consent is clearly and unmistakably stating “I want to hear from you”. The most popular tool to receive express consent from prospects, clients and others in your network is to ask them to subscribe to your newsletter via your website and personal email.

Implied consent is a little harder to define. It is a form of consent not expressly stated by a person, but rather supposed from a person’s actions and circumstances. A good example of implied consent is an active business relationship with a client. Another example is when a person clearly publishes or discloses his or her contact details. Many a time, people share their contact details on their website and/or on LinkedIn. It is important to note that the emails must be relevant to the recipient’s business, job position or duties.

To fight spam all Canadians need to have a common understanding of “commercial activity”. The confusing bit in CASL is that commercial activity is defined as, well transaction of “commercial character”. In other words, we have to wait and see how the term “commercial” is going to be interpreted in the next few years.

The rules for implied consent

So what’s the big fuss about these consents? The express consent has no limitations, but there are a couple of thing business owners need to know about implied consent:

  • You can contact a business that you have an existing relationship with via an electronic message within two years of your last interaction;
  • After an inquiry, you have six months to contact the business;
  • When someone gives you a business card, you can contact the individual about his or her business capacity (information related to the individual’s job position).

A ripple of shock went through the room as people were taking in this information. Suddenly the crowd realized it wasn’t only about proactively asking someone to sign up for a newsletter – it is about time tracking! (Which of course costs time!)

Exceptions

And there’s more! A law isn’t a law without exception and CASL has a couple of its own. The following types of messages are not bound by the opt-in system:

  • Electronic messages between family members and friends;
  • Business-to-business (B2B) inquiries; and
  • Consensual email.

To be clear, a consensual email can be in response to the B2B inquiry, about product-safety or a delivery notification. It basically falls within the “existing business relationship”.

This time, a sigh of relief went through the room. I could almost hear people thinking out loud “I can still contact people that are buying my services!” or “Yes, I can call a producer and let him know I am available for hire!”

A big debate that has been ongoing in the past few months is whether sharing a business card is implied consent or not. And yay for us business owners, business cards are implied consent.

Next week, I will share with you the second part about CASL compliance and go more in-depth into what everyone should do as of July 1st, 2014 what practical questions were asked and answered and three tips to get you started.

Who is Jonathan?

JonathanJonathan MacKenzie is Kaleidoscope’s legal matters expert and a lawyer at Aluvion Law. He works with small businesses and entrepreneurs, drawing on his former entrepreneurial experience. Aluvion is a new kind of law firm that makes the legal process for individuals and small business simple and transparent.

 

Image credit for top: Commons Wikimedia

Author

Lisette Andreyko

Lisette is the founder of Kaleidoscope and is passionate about start-up leadership, personal growth and women in business (and psst.. about tea!). She enjoys connecting with small businesses through her network. You can find her on LinkedIn.