On July 1^st, 2014, Canada's new anti-spam legislation comes into force.  It's a wide reaching piece of legislation that comes with some pretty stiff penalties, and there are a number of things your organization needs to be aware of.

The legislation covers three aspects of online communication / marketing: Commercial Electronic Messages or CEMs (more on these in a moment), installation of computer programs, and altering of transmission data.

In this article, I'll be focusing on CEMs since that is the most applicable aspect of this new legislation for Lifeline's typical customer.

What is a CEMs?

The CASL is very broad in its definition. Basically, it refers to any type of electronic messages—from emails to SMS messages—that have commercial intent.  That's everything from your 5,000 subscriber email list, to you or one of your sales agents touching base with a client.

If you are a business in Canada, and you are sending a message electronically that has commercial intent (i.e. to sell something), it is considering a CEM. Think about that for a moment. How many messages that you or your business have sent in the last week would be considered a CEM?

After July 1st, 2014 you must have consent (express or implied) to send CEMs to anyone in Canada.

The heart of this legislation as it pertains to CEMs is consent. It is required after July 1st, 2014. How is consent defined?

Express Consent:

Express consent can be given orally or in writing, but the onus is on the sender of the CEM (i.e. you) to maintain a record, as you may be called upon to provide proof of consent.

Some examples of express consent:

1) A sign-up form on your website that expressly outlines the information you will be sending the user.

2) A phone conversation in which a prospect requests you send them more information or a quote, of which you have recorded the audio.

3) At the register during a point of sale purchase, where a customer provides you oral permission to contact them with CEMs (again, this audio would need to be recorded!).

4) A form filled out at your business location that gives consent for the sending of CEMs.

Important note for consent collected through electronic means: You cannot have a consent form on your website that pre-checks the consent checkbox, and the user has to uncheck it in order to not give consent. This tactic is referred to as "negative option" marketing and is not permitted under CASL.

Implied Consent:

Implied consent can be given in a number of ways. Some examples include:

1) An existing business relationship defined as a purchase from your business in the last two years or an inquiry made in the last 6 months.

2) A business card given to you personally when the CEM directly relates to the individual’s role at their company and if the individual did not expressly request you do not contact them with marketing messages electronically.

3) A person who has "conspicuously published" their email without an accompanying statement that they do not wish to receive unsolicited commercial messages. I would advise caution with this one, as "conspicuously published" is not clearly defined.

Important Note:  Implied consent in the context of an existing business relationship expires. You need to keep track of this if you are emailing existing business contacts. If the customer has not made a purchase in the last two years, or it is beyond six months of their last inquiry about your business, then you no longer have their implied consent and MUST get express consent to continue to email them.

 The ONUS is on you.

So with all that said above, it is important to keep in mind that the onus is on you to prove consent (implied or express) in the event a complaint. This is really important, especially for smaller businesses, because if you receive express consent orally, the outlined acceptable proof of that is an "unedited audio recording."

Are you starting to get concerned yet? I, for one, am shocked by the far reaching implications of this law, and we're not even done yet! Check back on Wednesday for the next post in this series which will cover the identification requirements of CEMs under CASL.

This is the third email in a three part series: Part 2, Part 3  

OBLIGATORY NOTICE: I am not a lawyer; the previous article discussed an upcoming Canadian law and contains only my opinion. It should not be considered legal advice. Lifeline Design inc. does not guarantee this information, and all readers should consult their own legal counsel in regards to this legislation.